Appendix — RAYMOND FRANKLIN v. WALTER ZANT (No. 81-6174)
Supreme Court brief1981
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: Application No. 1823
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SUPREME COURT OF GEORGIA 8
1 6174
yreanrs, November 5, 1981
The Lhomerable Supreme Court met pursuant te ad paurnment.
The following onder was passed:
RAYMOND FRANKLIN V. WALTER ZANT, SUPT
Upon consideration of the application for a certificate of
probable cause to appeal filed in this case, it is ordered that it
be hereby denied .
SUPREME COURT OF THE STATE OF GEORGIA,
Cierx’s OFrrice, ATLANTA,
1 certify that the above is a true extract from the minutes -
of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto affixed
the day and year last above written.
fe 1 =
4
are ry ee *
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
RAYMOND FRANKLIN,
PETITIONER :
; HABEAS CORPUS
vs. : FILE NO. 5025
WALTER o. ZANT,
SUPERINTENDENT,
GEORGIA DIAGNOSTIC
AND CLASSIF!CATION
CENTER,
RESPONDENT
This habeas challenges the constitutionality
of Petitioner's restraint and the imposition of the
death penalty by the Superior Court of Bibb County.
Petitioner was convicted of Murder and Kidnapping.
He was sentenced to cases for Murder and to twenty
years imprisonment for Kidnapping. His convictions
and sentences were affirmed by the Supreme Court.
Franklin v. State, 245 Ga. 141 (1980). The Supreme
Court of the United States denied certiorari.
The Petition contains 37 numbered paragraphs,
24 of which substantive claims for relief (11-34).
Evidence and argument have been presented on 13
points, however, and the Court will only address
these claims for relief by paragraphs corresponding
numerically to the paragraphs in the Petition. All
unsupported allegations will be deemed abandoned
and without merit.
Aeeen or B, P.
The record in this habeas case consists of
the transcript of the proceedings before this
Court on May 26, 1981, and the transcript and
record of Petitioner's trial in the Bibb County
Superior Court.
In paragraph II, Petitioner claims he was
denied effective assistance of counsel in violation
“of his constitutional rights.
FINDINGS OF FACT
Petitioner was represented at trial and on
appeal by Barry Staples. (H. 1. 50,78). Mr. Staples
was admitted to the Bar in 19874 and has since engaged ,
in general practice in Marietta, Georgia. (H.T. 49).
Counsel estimated that 30-40% of his practice was
in the criminal area, (u. 1. 79). He had handled
a number of major felony cases, including armed
robbery and kidnapping cases. (H.T. 49-50). He
had also served as co-counse!l in a prior capital
felony case. (H.T. 49). Counsel received some
assistance in this case from his law partner, a law
clerk, and a private investigator. (H.T. 51).
Counsel! filed numerous motions. IA. 6-8,
13-19, 21-29, 40-44, 47-59). He met with Petitioner
on several occasions (M. 7. 23, 70) and with Petitioner's
family several times. (H.T. 13, 22-23). Counsel
visited the crime scenes, viewed evidence at the
Aopenorx 8 b. 2
District Attorney's office, and visited the State
Crime Lab where he examined evidence. (H.T. 52).
He interviewed or at least obtained statements
from all witnesses who testified at the trial.
(u. 1. 56). He also had a private psychiatrist
examine Petitioner, but did not present this
evidence at trial because the report was not
favorable to Petitioner. (H.T. 56-57).
Counsel's stragegy was to show the fatal
shooting was an accident. (H.T. 59). He did not
want Petitioner to be subjected to cross-examination
in the guilt/innocence phase, so Counsel determined
the best way to get in the evidence favorable to
Petitioner was through cross-examination. Id.
Petitioner's version of the incident was contained
in his statement which was read to the jury. (T.T. 459).
Counsel! asked Petitioner and his mother for
the names of possible witnesses for the sentencing
phase. (M. T. 13, 26). Petitioner's mother gave
Counsel a list of ten or twelve names and indicated
that seven would be willing to testify. (A. 1. 13, 21-22).
Counse! did not cal! Mr. McGee or Ms. Lingerfelt,
who were present at the trial, or Mrs. White, who
had been subpeonaed for a subsequent day, because
he thought their testimony would hurt es much #s
help. (H.T. 22). Sheriff Lee of Douglas County
told founse!l he would not present evidence favorable
to Petitioner. (H.T. 31, 57). Of the two deputies
from Douglas County, one became 111 and could not
-3-
Appendix G, b. 3
attend the trial while the other came but told Counsel
he knew nothing of the events. (H.T. 19, 58).
At trial Counsel made an opening statement
(7. 1. 272-274); cross-examined the State's witnesses
(T.T. 287, 293; 302; 319; 348; 360; 370; 378; 387; 394;
398; 402; 408; 413; 416; 423; 426; 438; 471; 480; 508;
510; 520; 531; 691; 697); gave argument during guilt/
innocence phase of the trial (1.T. 550-555); gave
argument during sente cing phase (I. 1. 684-685; 817-
821); presented three expert witnesses during the
sentencing hearing who testified before the judge who
then excluded their testimony from the jury (T.T. 713;
728; 736) in addition to presenting Petitioner's mother
(T.T. 749), Petitioner (7. 1. 759), and the tape of
Petitioner's statement (J. 1 762).
CONCLUSIONS OF LAW
The Sixth Amendment right to counsel! means "...not
errorless counsel, and not counsel judged ineffective
by hindsight, but counsel reasonably likely to render
and rendering reasonably effective assistance.”
MacKenna v. Ellis, 280 F. 2d 592 (Sth Cir. 1960);
Pitts v. Glass, 23! Ga. 638 (1974).
Petitioner's Counsel! easily meets this test.
He was experienced in the trial of criminal cases.
He prepared for and advocated Petitioner's cause in
a reasonably effective manner. The effort he put forth
was certainly reasonably effective within the meaning
of the standard.
abe
Append * 6, E. 4
Such decisions as whether to have put Petitioner
on the stand or which other witnesses to have called
are among the strategies and tactical decisions which
are the exclusive province of the lawyer after
consultation with his client. Reid v. State, 235 Ga.
378 (1978). Effectiveness is not measured by how
another lawyer may have handled the case. Estes x.
Perkins. 225 Ga. 268 (1968); Jones v. State, 243 Ga.
820 (1973).
Accordingly, the claim for relief in paragraph
Ii is found to be without merit.
12., 13., 1.
In paragraphsi2, 13, and 14, Petitioner challenges
the death penalty a ‘it is provided for, imposed, and
reviewed under Georgia law. Specifically, he contends
his death sentence inflicts a punishment which is
cruel and unusual in light of all relevant facts
relating to the offense and offender. He also
alleges his death is being exacted pursuant to a
pattern of Georgia authorities to discriminate
on grounds of race, sex, and poverty. Finally, he
attacks the statutory provisions governing appellate
review of death sentences.
Georgia's death statute has been declared
constitutional. Gregg v. Georgia, 428 U.S. 153, 96
s. ct. 2909, 49 L.Ed.2¢ 859 (1976).
Accordingly, these allegations are found to be
without merit.
-5-
Aopen O1 G, P. 5
19.
in paragraph 19, Petitioner claims constitutional
violation from the trial court's failure to charge
the jury on the law and existence of mitigating
circumstances during the sentencing phase.
FINDINGS OF FACT
The relevant portions of the jury instruction
are as follows:
"Hitigating circumstances are
those which do not constitute
a justification or excuse for
the offcase in question, but
which in fairness and mercy
may be considered as extenuating
or reducing the degree of moral
culpability or blame."
(7.7. 842).
“Now, the defendant in this case
contends that mitigating circumstances
4 exist. The mitigating circumstances
which the defendant contends exist
in this case, among others, ore
Raymond Franklin's age; whether
Raymond Franklin cooperated with
the police; whether Raymond Franklin
has neveribefore been convicted of
@ capital felony and what Raymond
Franklin's emotional state was at
the time of the offense, and also,
members of the Jury, you may consider
as mitigating circumstances any other
fact or circumstance which you, 45
members of the Jury, find to be
mitigating.
Now, members of the Jury, In reaching
your decision on the question of
punishment, you weigh any acaravating
circumstances that you find against
any mitigating circumstances that
you find and in that way, you
determine what the sentence should
be in this case.
1 charge you further, however, that
even if you find no mitigating
circumstances in the case, you are
authorized to return a verdict of
life Imprisonment."
(7. 1. 845).
afje
Appendix B O. Ee
CONCLUSIONS OF LAW
There is no requirement that mitigating circumstances
are to be singled out by the trial court in instructing
the jury. Potts v. State, 241 Ga. 67, 68 (1978);
Spivey v. State, 241 Ga. 477(2)(1978). Neither is
there a requirement that the jury be instructed that
mitigating circumstances are to be weighed against
aggravating circumstances. Gates v. State, 244 Ga.
587(6)(1979). Yet, the trial court did what it was
not required to do and gave examples and explained
the relationship between mitigating and aggravating
circumstances. Far from harming Petitioner, the
jury instruction could only have served to benefit him.
Mitigating cifculmstances were defined. The jury
was instructed they were free to recommend life
ever if they found aggravating circumstances to
exist. The jury was ‘properly instructed as to what
it as to consider in reaching its decision as to
sentence. Spivey v. State, 241 Ga. 477 (1978);
Gates v. State, supra.
Accordingly, the claim for relief in paragraph 19
is found to be without merit.
20., 2).
in paragraphs 20 and 21, Petitioner alleges his
constitutional rights were violated by jury selection
procedures which allegedly excluded al! persons having
conscientious or religious scruples against capital
punishment and resulted in a jury not representing
@ cross section of the community.
-J-
f nner ras A eae
— a
FINDINGS OF FACT
During voir dire, one prosepctive juror, Della
Mae Vickers, indicated she was opposed to capital
punishment. (T. 1. 151 153). She stated that she
would never, under any circumstances, consider the
death penalty as an alternative. id. She was
challenged for cause, and the Court sustained the
challenge and excused her. Id.
CONCLUSIONS OF LAW
Under Witherspoon v. tilinois, 391 U.S. 510,
BB s. ct. 1770, 20 L.€d.2¢ 776 (1968), jurors may be
excused for cause because of their views on capital
punishment where they. would automatically vote against
the death penalty without regard to evidence which
would be developed at the trial. Juror Vickers
clearly meets the test and was properly excluded.
The Supreme Court in Witherspoon x. tilinois,
supra, also rejected Petitioner's argument that
the exclusion of jurors opposed to capital punishment
results in an unrepresentative jury.
Accordingly, the allegations in paragraphs 20
and 21 are found to be without merit.
23.
In paragraph 23, Petitioner claims he was denied
effective assistance of counsel by the system of
appointment of counsel for indigent persons in
capital cases in Georgia.
In that Petitioner presented no evidence on this
issue, the Court finds the allegation to be without
merit.
25.
In paragraph 25, Petitioner contends that the
jury charge on intent was impermissibly burden-shifting
under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct.
2450, 61 . 6. 2d 39 (1978).
This Issue was decided adversely to Petitioner
on appeal. Franklin v. State, 245 Ga. 152(8).
Accordingly, the allegation in paragraph 25
ts found to be without merit.
26., 27.
in paragraphs 26 and 27, Petitioner claims he
was indicted by an unconstitutionally composed grand
jury and convicted by an unconstitutionally composed
traverse jury. He claims certain groups were
*
unconstitutionally excluded from the jury pools.
FINDINGS OF FACT
Petitioner moved for and was granted a change
of venue from Cobb to Bibb County. Franklin v. State,
245 Ge. at 143. Counsel filed challenges to the
Cobb Grand Jury and Bibb Petit Jury on grounds other
than exclusion, but the challenges were overruled.
Franklin ». State, 245 C. st 1130).
Counsel testified thst he had been furnished
statistical information on the jury selection
process in both counties. (H.T. 65, 85). He
determined the grounds raised were his best method
218827
of challenge. (H.T. 54, 66).
Thomas Charron, District Attorney of the Cobb
Judicial Circuit, testified that a successful grand
and petit jury challenge occurred in Cobb County
in 1976. (H.T. 82, 84). This resulted in a revision
of the jury selection process in Cobb County. (H.T. 84).
CONCLUSIONS OF LAW
The right to object to the composition of the
grand or traverse jury in a habeas corpus proceeding
under Georgia law will be deemed waived unless the
Petitioner shows that cause exists for his being
allowed to pursue the objection after the conviction
and sentence and conviction have become final. Ga.
Cede Ann. $50-127(1). Under Federal law, an additional
showing of actual pretudice is required. Francis v.
Henterson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149
(1976).
In light of the fact that both juries were
challenged at Petitioner's trial, Petitioner's
remaining objections on other grcunds are deemed waived.
Even if the Court did not conclude that waiver
has occurred, Petitioner has not demonstrated either
cause or prejudice exists in this case.
The “cause” asserted by Petitioner In this
case is that his trial counsel rendered ineffective
assistance of counse! by failing to challenge the
juries on the grounds of the exclusion of certain
groups. Failure to challenge arrays of grand and
Append: x 8, P. 0.
traverse juries alone is not a ground of ineffective
assistance or “cause” within the meaning of Ga.
Code Ann. $50-127(1). Goodwin v. Hopper, 243 Ga.
193 (1978); Birt v. Hopper, 245 Ga. 221 (1980).
Furthermore, the decision to challenge on the
grounds counsel did raise is a strategic decision
which is the exclusive province of the lawyer after
consultation with his client. Reid v. State, supra.
Petitioner has shown no actual prejudice
because the Court has before it no evidence indicating
that a jury challenge would have been successful.
This claim for relief is therefore without
merit.
28.
In paragraph 28, Petitioner contends that the
death penalty is in fact administered arbitrarily
and capriciously in violation of his Eighth and
Fourteenth niceties ehubee.
Petitioner has presented no proof on the
issue. Accordingly, the allegation is found to be
without merit.
33.
In paragraph 33, Petitioner claims the evidence
was insufficient to convict him of the offense of
murder beyond a reasonable doubt and results in
a Viblation of his constitutional rights.
Claims as to the sufficiency of evidence may
not be raised in a state habeas corpus proceeding.
Littles ». Balkcom, 245 Ga. 285 (1380).
Appends 8 P.
WHEREFORE, all allegations lo the Petition
having been found without merit, the Petition is
denied.
SO ORDERED, this JO _ day of September, 1981.
ALEX CRUMBLEY
JUDGE SUPERIOR COURTS
FLINT JUDICIAL CIRC
Append:x G P. 12
GEORGIA CODE PROVISTONS
Georgia Code Annotated Section 24-4526
Appeals of Habeas Corpus After Criminal Convictions
When Applications Grauted An application to appeal a final
judgment in a habeas corpus case after a criminal conviction will be
granted where there is arguable merit.
Coorgia Code Annotated Section 26-1101
Murder (a) A person commits murder when he unlawfully and with
malice aforethought, cither express or implicd, causes the death of another
human being. Express malice is that deliberate intention to tale away the
life of a fellow creature, which is manifested by external circumstances
capable of proof. Malice shall be implied where no considcrable provocation
appears, and where all the circumstances of the killing show an ahandoned
and malignant heart.
(b) A person also commits the crime of murder when in the commission
of a felony he causes the death of another hman being, irrespective of milice.
c) A person convicted of murder shall be punis!~t by death or by
imprisonment for life.
Ceorgia Code Annotated Section 38-801 (d)
(d) Fees; mileage. --The witness fee shall be $19 per dic, and
execution shall be is the clerk upon affidavit of the witness to
enforce payment thereof. The payment of fees shall not be demanded as a
condition precedent to attendance, but when a witness resides outside the
county where the testimony is to be given, service of the subpocna to be
valid must be accompanied by tender of the fee for one day's attendance
plus , leage of 20 cents per mile for traveling expenses for going from and
retur, .ng to his place of residence by the nearest practical route. lender
of fees and mileage may be made by uit ed States currency or postal money
order, or by cashier's or certified check. When the subpoena is issucd on
behalf of the state, or an officer, agency or political subdivision thercof,
or a defendant in a criminal case, fees and mileage need not be tendered.
Georgia Code Annotated Section 50-122
Exclusive procedure for suing out a writ of habeas corpus for
persons whose Tiherty ix heing restrained hy virtue of a scutcnme imposed
against them by a State Court of record. ieee
~ Notwithstanding the other provisions of the Title, the following
is the exclusive edure for suing out a writ of habeas corpus for persons
whose liberty is being restrained by virtue of a sentence impose! against them
by a State court of record:
APPENDIX C
p.
(1) Grounds for writ.--
Any person imprisoned by virtue of a sentence imposed by
any State court of record who asserts that in the proceedings
which resulted in his conviction there was a substantial denial
of his rights under the Constitution of the United States or
of the State of Georgia or the laws of the State of Georgia
may institute a proceeding under this section. Except for
objections relating to the composition of a grand or traverse jury,
rights conferred or secured by the Constitution of the United
States shall not be deemed to have been waived unless it is
shown that there was an intentional or abandonment of a
known right or priviledge which relenquishment or abandonment was
participated in by the party and was done voluntarily, knowingly,
and intelligently. The right to object to the composition of the
grand or traverse jury wil! be deemed waived under this section,
unless the person challenging the sentence showa in the petition
and satisfies the court that cause exists for his being allowed
to pursue the objection after the conviction and sentence has
otherwise become final.
(2) Petition and verification.--
The petition shall identify the proceeding in which the
petitioner was convicted, give the date of rendition of the final
judgment complained of, and cleariyset forth the respects in
which petitioner's rights were violated. The petition shall
have attached thereto affidavits, records, or other evidence
supporting its allegations or shall state why the same are not
attached. The petition shall identify any previous proceedings
that petitioner may have taken to secure relief from conviction.
Argument and citations of authorities shall be omitted from the
petition. The petition must be verified by the oath of the
applicant or some other person on his behalf.
(3) Jurisdiction and venue
The petition must in the superior court of the
county wherein the petitioner is being detained. The superior
courts of such counties have exclusive jurisdiaction of habeas
corpus actions arising under this section.
(4) Service of the tition.--
Service of the petition Shall be made upon he perso having
custody of the petitioner. If the petitioner is being detained
under the custody of the Board of Corrections, an additional
copy of thepetition shall be served on the Attorney General;
however, if the petitioner is being detained under the custody of
some other quthority other than the Board of Corrections, an
additional copy of the petition shall be served upon the solicitor
general of the county wherein the petition is filed. Service
upon the Attorney General or the solicitor general may be had by
eee a copy of the petition along with a proper certificate
of service.
(5) Custody of petitioner.--
Custody and control of the petitioner shall be retained by
the Board of Corrections or other authority having custody of
the petitioner and it shall be the duty of such board or authority
to produce the petitioner at such times and places as the court
may direct.
(6) Proceedings on petit len.
Within 20 days after filing and docketing of the petition,
or within such further time as the court may set, the respondent
shall answer or move to dismiss the petition. The court shall
set the case for a hearing on the issues within a reasonable
time after the filing of defensive pleadi .
App. C, p. A
(7) Disposition in the trial court.--
(a) The court may receive proof by depositions, oral
testimony, sworn affidavits, or other evidence.
(b) The taking of depositions upon written questions,
by either party, shall be governed by the provisions of sections
81A-127 through 81A-132 and 81A-137: Provided, however, that the
time allowed in section 81A-131 for service of cross-questions
upon all other parties shall be 10 days from the date the notice
and written questions are served.
(c) If sworn affidavits are intended by either party to
be introduced into evidence, the party intending to introduce
the affidavit shall cause it to be served wpon the opposing party
at least five days in advance of the date set for a hearing in the
case. The affidavit so served shall be accompanied by a notice
of the party's intention to introduce it into evidence. The
superior court judge considering the petition for writ of habeas
corpus may resolve disputed issues of fact upon the basis of
sworn affidavits standing by themselves.
d) If the court finds in favor of the petitioner, it shall
enter an appropriate order with respeet to the judgment or sentence
challenged in the proceeding and such supplementary orders as to
rearraignment, retrial, custody, or discharge as may be necessary
and proper. In all cases the court shall dispose of the matter
as law and justice require.
(8) Transcribing proceedings
All trials held under this section shall be transcribed by
@ court reporter designated by the superior court hearing the
case.
(9) Judge's findings of fact and conclusions of law.--
After reviewing the pleadings and cvidence offered at the
trial of the case, the judge of the superior court hearing the case
shall make written findings of fac t and conclusions of law upon
which the judgment is based. Such findings of fact and conclusions
of alw shall be recorded as part of the record of the case.
(10, Subsequent petitions--waiver of grounds not claimed.--
All grounds for relief cla y a petitioner for a writ
of habeas corpus shall be riased by a petitioner in his original or
amended petition. Any grounds not so raised are waived unless the
Constitution of the United States or of the State of Georgia
otherwise requires, or any judge to whom the petition is assigned,
on considering a subsequent petition, finds grounds for relief
asserted therein which could not reasonably have been raised in
the original or amended petition.
(11) Practice as to a als.--
(a) Appeals In habeas corpus cases shall be governed by the
Appellante Procedure Act of 1965 [§6-701 et seq], except that as to final
orders of the court which are adverse to the petitioner, no appeal
shall be allowed unless a justice of the Supreme Court of Georgia
shall issue a certificate of probable cause for such appeal.
(b) Within 30 days from the entry of the order denying relief
to the petitioner, a written application for a certificate of probable
cause to appeal must be filed with the clerk of the Supreme Court
of Georgia, if the unsuccessful petitioner desires to appeal. The
petitioner shall also file, within the same period, a notice of appeal
with the clerk of the concerned superior court. A justice of said
appellate court shall either grant or deny the application within
App. C, P. 3
a reasonable time after filing. 80 the justice may fully consider the
request for a certificate, the clerk of the concerned superior court shall
forward as in any other case, the recon! and transcript if designated, to
the clerk of the Supreme Court of Georgia when a notice of appeal is tiled.
The clerk of the concerned superior court necd not prepare and retain and
the court reporter necd not file, a copy of the original record and a copy of
the original transcript of the proceedings. The clerk of the Supreme Court
of Georgia shal] return the original record and transcript to the clerk of
the concerned superior court upon completion of the appeal if the certificate
is granted. If the Justice of the Supreme Court of Georgia denics the
application for a certificate of probable cause, the clerk of the Supreme
Court of Georgia shall return the original record and transcript and notify
the clerk of the concerned superior court and the parties to the proceedings
below of the determination that probable cause does not exist for appeal.
(c) If the trial court finds in favor of the petitioner, no
certificate of probable cause need be obtained by the respondent as a
condition precedent to appeal. A notice of appeal filed by the responicne
shall act as a supersedeas and stay the judgment of the superior court int!
there is a final adjudication by the appellate court: Provided however, that
while such case is on appeal, the petitioner may be released on hail as is now
provided for in criminal cases, except where the petitioner hus been convicted
of a crime over which the Supreme Court of Georgia has jurisdiction to consider
on direct appeal. The right to bail and the amount of bond shall be within
the discretion of the judge of the superior court where the sentence successfully
challenged under this chapter was originally imposed.
App. C, p. U
STATE OF GEORGIA : BIBB SUPERIOR COURT
n (COBB COUNTY CASE)
vs. CASE #2016-79
RAYMOND LEE FRANKLIN a CHARGE: KIDNAPPING U MURDER
CHARGE TO THE JURY BY HONORABLE WALKER JOHNSON, JR.
Members of the Jury, the Grand Jury of Cobb County
has returned an indictment charging Raymond Lee Franklin with
the offenses of kidnapping and murder, in separate counts. To
this indictment the defendant stood mute and be Court has
directed that a not guilty plea be entered. The plea, on the
one hand, and the indictmemt, on the other hand, fomthe issue
which you as Jurors heave been impaneled to try. These counts
are being tried together, but I charge you that you are to con-
sider each count against this defendant separately and you are
to determine the guilt or innocence of the defendant on cach of
these counts without being controlled in that determination by
your findings as to the guilt or innocence of the defendant in
the other count. In other words, you try each of these counts
against the defendant just as you would try it, if the defendant
were on trial on one count and you were to determine the guilt
or innocence of the defendant in each of these counts without
being controlled by your determination of guilt or innocence on
the other count.
- 650 -
Now, I'm not going to read the indictment to you. The
|} indictment will be out with you subject to your inspection and
it has been read to you. You should look at the indictment and
| read it for the specific charges brought against this defendant.
Now, the charge I am about to give you will apply
unless otherwise specified to each count of this indictment
separately and you will consider the same in connection with
each count of the indictment.
The fact that the defendant has been indicted by
i the Grand Jury raises no presumption or inference whatsoever
against hin You will not take the fact that an indictment has
been preferred against the defendant as having any probative
or evidentiary force or value whatsoever“ The indictment is
oniy the process which the law has adopted to bring a defendant
to trial, containing as it does, the contentions of the State.
All of these contentions in this case are denied by the defen-
dant . The defendant's plea of not guiity which has been entered
on his behalf challenges and denies every material allegation
in each count of this indictment and I charge you that before
the State is entitled to a verdict of conviction of this defen-
dant at your hands upon either count of this indictment, the
burden is upon the State of proving the defendant's guilt as
charged in such count beyond a reasonable doubt The State, how-
ever, is not required to prove the guilt of the defendant beyond
211 doubt or to a mathematical certainty Moral and reasonable
certainty is al] that can be expected in a legal investigation.
- 651
Now, reasonable doubt is just what that terms implies.
It's a doubt based on reason. It is not an arbitrary nor a capri-
cious doubt but it is just such a doubt as a reasonable man or
woman would have, would act upon, or would decline to act upon
in a matter of importance or grave concern to himself or herself
In other words, a reasonable doubt is the doubt of a fair-minded,
impartial juror actively seeking for the truth and it may arise
from a consideration of the evidence, from a conflict in the
evidence or from a lack of evidencey If, upon a consideration
of 211 the facts and circumstances of this case, your mind is
wave’ ing, unsettled, not satisfied, then that is the reasonable
doubt under the law and if such a doubt rests upon your mind,
it is your duty to give the defendant the benefit of that doubt
and acquit himy If, on the other hand, no such doubt rests upon
your mind, it would be equally your duty to return a verdict
of guiltyy
Now, the defendant enters upon his trial with the pre-
sumption of innocence in his favor and this presumption, while
not evidence, is yet in the nature of evidence and it remains
with him throughout the trial, unless and until it is overcome
by evidence sufficiently strong to satisfy you of his guilt to
a reasonable and moral certainty and beyond a reasonable doubt
Now, you are the judges of the law in the case but
you take the law as given you in charge by the Court and apply-
ing the law to the facts as you find the facts to be, you return
a verdict that speaks the truth of the case/ That is the object
of all legal investigations; the discovery of the truth.
— 652 -
You are the sole and exclusive judges of the facts
in the case./ You pass upon the weight, the force and the credit
to be given to the evidence in the case and you alone determine
the credibility of the witnesses who have testified in the case.
In passing upon the credibility of the witnesses, you are author-
ized to consider all the facts and circumstances in the case,
the witnesses' manner on the stand, their means and opportunity
for knowing the facts about which they testified, their interest
or want of interest in the case, their intelligence or lack of
intelligence, the nature of the matters to which they testified,
the probability or improbability of their testimony, their bias
or prejudice, if any, and also, their personal credibility inso-
far as they may legitimately appear from the trial. You may also
consider the witnesses’ relation to the case or to the parties
in the case. All of these things are proper matters for your
consideration insofar as they legitimately appear from the trial.
It is for you to finally determine what credit is to be given
to any witness A
Now, I charge you as to two types of eVidence; direct
evidence is that which immediately points to the question at issue
Indirect, or circumstantial, evidence is that which only tends
to establish the issue by proof of various facts sustaining by
their consistency the hypothesis claimed / To warrant a conviction
on Circumstantial evidence alone, the proved facts shall not
only be consistent with the hypothesis of guilt but shall exclude
every other reasonable hypothesis, save that of the guilt of
the accusedy
- 653 -
When the guilt of a defendant depends on circumstantial
evidence alone, the rule is that each separate fact or issue
linked in the chain of circumstances from which the deduction
of guilt is sought to be drawn must be clearly proven beyond a
reasonable doubt, A fact or circumstance not so clearly proven,
shall not be considered by the Jury as part of the chain of
circumstances but should be rejected by themy The circumstances
so proven must be a part of a complete, unbroken chain and must
not only be consistent with the defendant's guilt, but must exclud@
every other reasonable hypothesis, save that of the guilt of the
accused.
If one or more of the circumstances relied on by
the State are not so clearly proven and for that reason you
reject one ormre of the circumstances so relied upon, then you
would require whether the remaining circumstances you believe
are so clearly proven are consistent with the defendant's guilt,
and inconsistent with any other reasonable hypothesis, save that
of his guilt.
I charge you, however, that whether dependent upon
direct or circumstantial evidence, the true test in a criminal
case is not whether the conclusions at which the evidence points
may be false, but whether or not the evidence is sufficiently
strong to satisfy your minds and consciences to a reasonable
and moral certainty and beyond a reasonable doubt of the defen-
dant's guilt. If the evidence is thus strong, it would be your
duty to convict. If it is not thus strong, it would be equally
your duty to ecquit.
- 654
—_
Now, members of the Jury, you have heard some testimony
concerning a statement that may or may not have been made by
this defendant. I charge you that all statements shall be scanned
with care and confessions of guilt shall be received with great
caution. A confession alone uncorroborated by any other evidence
shall not justify a conviction.
Members of the Jury, I charge you that flight, if any,
by one who has done an act alleged to be a crime, immediately
after the act and similar acts, if proved, from which an inference
of a consciousness of guilt may be drawn by the Jury, may be con-
sidered by the Jury, but flight is subject to explanation. The
weight to be given to it, and whether or not the Jury vill draw
the inference of a consciousness of guilt from it is a question
i for the Jury. It is for the Jury to determine whether the flight
of the defendant, if any such has been shown, was due to a sense
of guilt or was prompted by other causes and if the alleged flight
was prompted by causes other than a consciousness of guilt, no
inference hurtful to the defendant should be drawn from the alleged
flight. ‘
Now, members of the Jury, the Court does not mean or
intend by anything heretofore said or hereafter said to express
or intimate to you any opinion as to what has or as not been
proved in this case or as to what your verdict should or should
not be. If the Court has said or done anything or should say or
do anything during the progress of this trial, including this
charge, which would lead you to believe that the Court has ex-
pressed or intimated any opinion as to what has or has not been
- 685 -
Arad D, pace sue (0
a's
ty!
proved or as to what your verdict should or should not be, then
you will disregard that entirely and completely disabuse your
minds of that.
Now, Ladies and Gentlemen, the burden is upon the
State to prove to a reasonable and moral certainty and beyond
a reasonable doubt every material allegation in each count of
lthis indictment and 1 charge you further, that there is no burden
Jon the defendant to prove anything. The burden is on the State.
Now, I give you in charge, certain definitions as
found in the Criminal Code of the State of Georgia.
A crime is a violation of a statute of this State in
which there shall be a union of joint operation of act or omission
to act, and intention or criminal negligence. A person shall not
be found guilty of any crime committed by misfortune or accident
iwhere it satisfactorily appears there was no criminal scheme or
undertaking or intention or criminal negligence.| The acts of a
person of sound mind and discretion are presumed to be the pro-
— —— —
: :
duct of the person's will, but the presumption may be rebutted.
—— —
A person of sound mind and discretion is presumed.to intend the
natural and probable consequences of his acts but the presumption
Jay be rebutted.
—
—
criminal intention but the trier of facts, that is, the Jury, may
— — —
find criminal intention upon a consideration of the words, con-
A person will not be presumed to act with
duct, demeanor, motive and al] other circumstances connected
with the act for which the accused is prosecuted.
Now, members of the Jury, in Count I of this indict-
| ment, the State charges that on or about the 17th day of January,
- 656 -
Pitemy D. page sever (7
of proof. Malice shall be implied where no considerable provoca-
tion appears and where all the circumstances of the killing show
an abandoned and malignant heart.
Now, you will see that malice is an essential ingredi-
ent in murder as charged in this indictment in Count II, and it
must exist before the alleged homicide can be murder. Malice
in its legal sense is not necessarily ill will or hatred; it is
the unlawful, deliberate intention to kill a human being without
justification or mitigation or excuse, which intention must exist
at the time of the killing. It is not necessary, however, that
this unlawful, deliberate intention should exist for any particu-
lar length of time before the killing. If it enters the mind of
the slayer the moment before he fires the fatal shot or strikes
the fatal blow or inflicts the fatal wound, that is sufficient.
Members of the Jury, I charge you that it is not en-
cumbent upon the accused to prove an absence of malice, if the
evidence for the prosecution shows facts which may excuse or
justify the homicide. The accused is not required to produce
evidence of mitigation, justification or excuse on his part to
the crime of murder. Whether mitigation, justification or excuse
is shown by the evidence on the part of the State, it is not re-
quired of the accused to prove an absence of malice, if the
evidence for the State shows facts which may excuse or justify
the homicide. But it is for you, the members of the Jury to say
after a consideration of all the facts and circumstances in the
case, whether or not malice, express or implied, exists in the
case.
- 658 -
APPENDIX D, page mine (4)
Now, members of the Jury, I charge you that if you
believe beyond a reasonable doubt that Raymond Lee Franklin, in
Cobb County, at any time prior to the return of this indictment,
with a weapon or instrumentality named in the indictment, and
with malice aforethought, either express or implied, did unlawful]
and intentionally shoot and kill the deceased, Claude Collie, as
charged in the indictment, and you believe the weapon or instru-
mentality used in the manner used, if one was used, was one
likely to produce death, then you would be authorized and it
would be your duty to convict the defendant of the offense of
murder and in that event, the form of your verdict would be,
As to Count II, we, the Jury, find the defendant guilty.”
Now, as to each count of this indictment, the defen-
dant contends that he is not guilty of the offense charged and
further contends that the State has not proved his guilt of the
offenses as charged in each count to a reasonable and moral
certainty and beyond a reasonable doubt, and he further contends
as to Count II, the murder, that the homicide was an accident.
I charge you that a person shall not be found guilty
of any crime committed by misfortune or accident where it satis-
factorily appears there was no criminal scheme or undertaking
or intention of criminal negligence. An accident, in the eyes
— —
of the criminal law, is an event that takes place without ones
— TS
foresight or expectation; that which takes place or begins to _
——
exist without design.
Members of the Jury, if, from a consideration of the
evidence or from a lack of evidence, you are not satisfied beyond
- 689 -
Arrevay D, page ten (ue)
ö
ats
| the State has established the guilt of the defendant of the is
charged in Count I or Count IJ, or both, of this indictment, then
it would be your duty to acquit him as to such count and the
form of that verdict would be, "As to Count I, we find the defen-
jdant not guilty." “As to Count II, we find the defendant not
| quilty."
: Now members of the Jury, you decide this case on the
i facts of this case as you find them to be and as applied by you
to the law in this case as given you in charge by the Court and
reasonable doubt and to a reasonable and moral certainty that
you reach a verdict speaking the truth of the case. You are not
concerned with the effect of your verdict, but you are concerned
that it speaks the truth in the case. You will consider each
count in the indictment separately and return a verdict under
each count separately in one of the forms which the Court has
given you in charge.
Members of the Jury, your verdict as to each count
| must be unanimous, in writing, dated and signed by your Foreman
in this case. If you cannot unanimously agree on; verdict, the
Court is required by law to declare a mistrial and try the case
again before another Jury; however, no Juror is required to
surrender his or her honest opinion because of an honest, different
opinion of another Juror, or other Jurors, or for the purpose of
reaching a unanimous verdict. Jurors should consult with one
another and deliberate with a view of reaching a unanimous ver-
dict, consistent with their consciences and oaths as Jurors. Each
Juror must make an individual decision, but only after a fair
| Arrendy D, page eleven (1)
and inpartis! consideration of the entire case with their fellow
Jurors. A Juror should not hesitate to re-examine his or her
views or change his or her opinion, if after fair and impartial
discussion and deliberations with the other Jurors, the Juror is
honestly convinced that he or she should change his or her opinion,
Every effort consistent with the instructions I have just given
you and with your consciences and oaths as Jurors should be
fairly and honestly made to reach a unanimous verdict in this
case. Whatever your verdict is is a matter entirely for you,
Ladies and Gentlemen, to determine.
Now, I'm going to ask the Bailiffs to take the Jury,
minus the thirteenth Juror, up to the Jury room but I am instruct-
ing you not to begin deliberations until I send the evidence to
you and advise you to begin your deliberations.
(WHEREUPON, THE JURY RETIRED TO THE JURY ROOM AT
8:45 P.M.)
BY THE COURT: Mr. Staples, do you have any exceptions
to the Charge?
BY MR. STAPLES: No, sir, Your Honor, with the excep-
tion of the requests which you failed to charge,
BY THE COURT: Any exceptions for the State?
BY MR. CHARRON: No, Your Honor.
(WHEREUPON, JURY BEGAN THEIR DELIBERATIONS AT 9:03 P.M.
AND RETURNED TO THE COURTROOM AT 10:15 P.M. AND THE
FOLLOWING TRANSPIRED: )
- 661 -
| | Atrcnionx D. pa qe twelve (12)
BY THE COURT: Who is your Foreman or Forelady?
BY FOREMAN GERECHT: I am, sir.
BY THE COURT: All right, the question is that you want
a re-definition of malice and malice aforethought, is that
right? (SEE T. 621 (a) COURT'S EXHIBIT #A)
BY FOREMAN GERECHT: Yes, sir, and also we'd like a
definition of what they legally term accidental,
ADDITIONAL CHARGE TO THE JURY BY THE COURT
I charge you on accident. The law of Georgia is that
a person shall not be found guilty of any crime committed by mis-
fortune or accident where it satisfactorily appears there was no
criminal scheme or undertaking or intention or criminal negligence,
An accident is an event that takes place without one's foresight
or expectations; that which takes place or begins to exist without
design.
Malice aforethought is an essential ingredient of murde
Malice may either be express or implied. Express malice is that
deliberate intention unlawfully to take away the life of a fellow
creature which is manifested by external circumstances capable of
proof. Malice shall be implied where no considerable provocation
appears and where all the circumstances of the killing show an
abandoned and malignant heart. Malice, as I said, is an essential
ingredient in murder as charged in this indictment and it must
exist before the homicide can be murder. Malice, in its legal
sense, is not necessarily 111 will or hatred. It is the unlawful,
- 662 -
Arprenarx Y page thirteen (13)
deliberate intention to kill a human being without justification
or mitigation or excuse, which intention must exist at the time
of the killing. It is not necessary, however, that this unlawful
intention should exist for any particular length of time before
the killing. If it enters the mind of the slayer the moment be-
fore he fires the fatal shot or strikes the fatal] blow, or inflicts
the fatal wound, that is sufficient.
Now, that's the definitions. Anything else?
BY FOREMAN GERECHT: That's all.
BY THE COURT: You may go back to the Jury room and
resume your deliberations.
(WHEREUPON, THE JURY RETIRED TO THE JURY ROOM AT
10:20 P.M. FOR FURTHER DELIBERATIONS.)
BY THE COURT: Is there anything else?
BY MR. STAPLES: No, sir.
BY MR. CHARRON: No, Your Honor.
(WHEREUPON, THE JURY RETURNED TO THE COURTROOM AT
10:30 P.M. AND THE FOLLOWING TRANSPIRED: )
BY THE COURT: Mr. Foreman, has the Jury reached a
verdict?
BY FOREMAN GERECHT: Yes, sir, we have.
BY THE COURT: All right, would you hand it to the
Bailiff, please. Mr. Charron, would you please publish the
verdict. The defendant will please rise.
BY MR. CHARRON: Your Honor, in case #790126 out of
Cobb Superior Court, the State of Georgia vs. Raymond Lee
- 665 -
Arrenox D. 2242 falsteen (14)
(WHEREUPON, THE JURY LEFT THE COURTROOM AND THE FOLLOW-
ING TRANSPIRED: )
BY MR. STAPLES: Your Honor, I anticipate that the Statq
will attempt to introduce this morning in aggravation, two
pleas of guilty previously entered by Mr. Franklin. Notice
was formally served upon me of their intent to do so, I be-
lieve, the 23rd day of April, 1979, which was the first day
of this trial. The Georgia Court of Appeals in the case of
Queen v. The State, has stated, that notice given the day of
the trial is not sufficient under the law. I! believe it's
cited in 131 Ga. App. 370. I call to the Court's attention
p. 373. In that case, the Court said as follows: "Defendant
contends error in the manner in which the state complied with
the requirement of Code Ann. Sec.27-2534 whereby the state
is required to make known to the defendant evidence that it
plans to use during the sentencing phase in ‘aggravation. *
There was a three-day hiatus between the plea of not guilty
and the commencement of the trial. The requisite notice of
the existence of a previous indictment and conviction that
had occurred in 1969 was not given until the day the trial
began. Defense counsel objected to the introduction of the
certified copy on the ground that the notification was not
timely. The objection was overruled. The document intro-
duced was an indictment in two counts, one being for larceny
of an automobile and the other for receiving stolen goods.
The indictment further showed the defendant was found not
guilty as to the larceny charge but was found guilty on the
- 669 -
“Appendix “ar
the receipt of stolen goods offense with the sentence being
set at three years with the recommendation of misdemeanor
punishment. When the legislature created in 1970 our bifur-
cated procedure separating the sentencing phase from the
trial portion dealing with guilt or innocence, the statute
which is now codified as Sec. 27-2534 provided for the ad-
missibility of additional evidence ‘in extenuation, mitiga-
tion, and aggravation of punishment, including the record
of any prior criminal convictions and pleas of guilty or
pleas of nolo contendere of the defendant, or the absence of
any such prior criminal convictions and pleas: Provided,
however, that only such evidence in aggravation as the State
has made known to the defendant prior to his trial shall be
admissible.‘ No time was specified as long as it was prior
to trial. Whenever the courts undertake to interpret the
meaning of a Statute, we are required to ‘look diligently
for the intention of the General Assembly, keeping in view,
at all times, the old law, the evil, and the remedy.' Code
Sec. 102-102(9). In following this directdve, we recognize
that the intention of the legislature obviously was to give
the convicted defendant enough time to rebut or explain any
conviction record. Even though we recognize that an accused
would have knowledge of his personal history he should never;
theless be given sufficient opportunity to subpoena ee
and reasonable time in which to obtain evidence that might
available by subpoena. Obviously the giving of notice on
the same day as the commencement of trial is not sufficient
- 670 -
88
for this purpose and does not meet the requirement of fair
play and sound justice. In consideration of the old law,
the evil and the remedy it was clearly the intention of the
legislature in creating the bifurcated procedure to give a
reasonable period of time in which the convicted person
might develop extenuating evidence to meet the previous
record. Accordingly, this case is remanded for retrial
limited to the sole issue of punishment." Now, Your Honor,
on April 20th, 1979, I received a letter delivered by hand
by Mr. Charron's secretary from Ms. Staley which states:
“While we were talking I forgot to tell you that we will
be using prior convictions against Raymond Franklin in the
sentencing phases. These are a plea of guilty in 1974 in
Fulton County for criminal attempt to commit robbery, case
A- 242806, and a plea of guilty in Douglas County for burglary;
in July 1977, case #CR-77-849.| We will serve you with forma!
notice Monday morning. { Also, 1 found an extra witness yes
terday afternoon. His name is E. L. Morris and he is a
Douglas County Deputy Sheriff. If I can be of further help
let me know. Sincerely, Mary Staley." I call Your Honor's
attention to the case of Moss v. The State, a decision of
the Georgia Court of Appeals, 144, p.226, a case from Cobb
County Superior Court before Judge Ravan in which Mr. Charrog,
the District Attorney represented the State with the assist-
ance of Adele Grubbs. In that case, “Prior convictions of
the appellant were tendered into evidence at the sentencing
phase of the trial. Objection was made to one of thes
- 671 -
App D'S
because the state's intention to submit that conviction was
not disclosed prior to trial. Code Section 27-2503. The
court admitted the record into evidence and sentenced appel-
lant to 20 years. Appellant contends that the sentence must
be set aside. The state argues that the purpose of the
Statute requiring disclosure prior to trial has been served
because there were almost three weeks between the guilt and
sentence phases of the trial." Citing Queen v. The State,
which I have just cited to Your Honor. That case “is cited
for authority that substantial compliance is sufficient, so
long as the defendant has time to prepare for the sentence
hearing." The Court of Appeals says: “Queen does contain
an analysis of the legislature's intent in passing former
Code Ann. Sec. 27-2534 (replaced by Sec. 27-2503), but it
does not suggest that the statute need not be literally
followed. In fact, this court in Queen remanded the case
for resentencing.” Now, Your Honor, inasmuch as the letter
is outstanding, I call your attention to the case of Gates
v. The State, 229 Ga. 796. In that case, 44. “During the
sentencing phase of the trial the State introduced evidence
of two prior convictions of the appellant over the appellant
objection. The objection was that the State had not ‘made
known’ to the appellant prior to his trial that this een
would be introduced. Our statute provides that only such
evidence in aggravation as the State has made known to the
defendant prior to his trial shall be admissible at the sen-
tencing phase of the trial. Code Ann. Sec. 27-2534. The
- 672 -
App F py
State contended that the appellant's attorney had been told!
of prior convictions of the appellant prior to the trial
but had not specifically informed appellant's counsel that
this specific evidence of prior convictions would be relied
on by the State and introduced in ovidence at the sentencing
phase of the trial. Appellant's counsel contended that the
State had not put him on notice that the specific evidence
offered would be used by the State during the sentencing
phase of the trial." The Supreme Court said: “We believe
that this statute means that notice of each specific con-
—
viction to be introduced in evidence by the State at the
—ů—
sentencing phase of the trial should be given to the party
on_trial or his attormex.. And the fact that such notice
was given should be At and not cloudy, as in this case."
—
Your Honor, I call your attention, as well, to the case of
Ramsey v. The State, 24] Ga. 426. In that case, the defen-
dant was served with a notice of an FBI rap sheet. The Stats
contended that such notice as contained in the FBI rap sheet
would be sufficient notice to put him on notice that con-
victions were going to be introduced.
BY THE COURT: I know Ramsey. We don't have the Ramsey
case.
BY MR. STAPLES: Your Honor, it is my position with
regards to all three of those cases that they must be read
in conjunction with one another.
BY THE COURT: Let me see the letter.
BY MR. STAPLES: I would point out to Your Honor such
letter was given to me late Friday afternoon, at approximatejy
- 673 -
App F pos
midday, before three o'clock, after lunch. The case in
which convictions were extensively, in Douglas County and
Fulton County, we were in Cobb County for a trial that was
to begin the following Monday. We take the position that
such notice was not proper.
BY MR. CHARRON: Your Honor, if it please the Court,
Code Section 27-2503 (a) which requires that the State serve
notice on the defense of any prior convictions that they
intend to present in the presentence phase does not require
more than reasonable compliance. Each case that Mr. Staples
has already cited to the Court, in each case, it says the
same thing. As long as reasonable-complience with the Code
Section has been met then the Code Section has been satisfied
In the case at bar, we not only have reasonable compliance,
but I cannot even see the issue of where were in any non-
compliance with the Code Section. Notice, if you want to
call it formal notice, if that in fact the Court is not going
to recognize the letter of the 20th, was given prior to the
issue being jcined on the case on Monday, which the Code
Section states is prior to trial. That's all the Code sii
ever states, but what probably would be misleading was the
fact that actual notice was given on the 20th, which was
Friday afternoon. And not only was that notice hand-deliver¢
te Mr. Staples in his office, but in that letter, we specifi:
cally gave him the conviction notice of the two prior con-
victions that we intended to introduce at the trial, at the
pre-sentence phase of the trial. Nov, the purpose of the
— 674 -
App F, pb
BY MR. STAPLES: Your Honor, I intend to call at this
time, Mr. E. L. Smith, who I would attempt to qualify as a
man who is an expert in the death penalty from having worked
on death row as an Assistant Chaplain.” I expect him to test
fy as to the ritual of executions. I except him further to
testify about life on death row and its affect on the inmate;
The purpose of this testimony is to show that the nature of
capital punishment is more than execution. I further expect
him to testify about the sociopsychological profile of the
criminal and to what regard Mr. Franklin fits that profile.
I further expect him to testify as to execution statistics
in the State of Georgia in view of showing that they are
applied primarily to poor, and I expect him to testify to
some extent as to the rehabilitative qualities of some perso
who have been placed on death row.
BY MR. CHARRON: Your Honor, my objection will be brief
Stated. Number one, I think it has no relevancy whatsoever
to this phase of the trial or to the defendant as he stands
before the Jury to offer mitigating or extenuating circum-
Stances as to the charge of this particular crime. It is no
for the Jury to decide philosophical questions of whether or
not the death penalty in general is imposed properly or not,
but only as it applies to this defendant. They have been
qualified already as Jurors as to their general opinion as
to the death penalty and that they would apply the facts of
this case to the punishment for the defendant. Assuming tha
this individual could even be qualified as an expert, which
- 704 -
Aßppf pT
I gravely doubt, any application of the philosophical view
of death penalties or life on death row would have no releva
to this case in point; it would be improper and it would be
invading the province of the Jury to hear testimony as to
how an execution is conducted or carried out since that is
not their concern or in their purview. Now, they are instrug¢
when they give a punishment, that that is meted out by the
Courts, that their duty is over at that particular time and
they should only weigh the facts and circumstances as they
surround this particular case and whether or not that punish
ment meets the crime.
BY MR. STAPLES: Your Honor, if I might; I qualified in
the voir dire, Jurors as to whether or not they had ever
seen an execution and the only Juror in the entire panel that
had was Mr. Gerecht. Now, I take the position that this vide
scope of evidence used in the sentence is permissible under
the rule of Cregg v. Georgia, U. 8. Supreme Court case 428
U.S. 153, 49 T. Ed. 2d 859 at 891. In that case, the Court
said: "We think that the Georgia Court has*wisely chosen not
to impose unnecessary restrictions on the evidence that can
be offered as such a hearing and to approve open and far
anging argument... So long as the evidence introduced and
the arguments made at the presentence hearing do not prejudi
a
a defendant, it is preferable not to impose restrictions.
We think it is desirable for the jury to have as much infor-
mation before it as possible when it makes the sentencing
decision.” And, Your Honor, in addition, Spivey v. State,
- 708 -
| hopk, p
241 Ga. 477, considering mitigating circumstances, the Court“
held in that case “that the legislature meant to empower the
jury to consider as mitigating anything they found to be
mitigating, without limitation or definition.” Spivey cited
Jurek x. Texas, in the same vein, “the jury may be asked to
consider whatever evidence of mitigating circumstances"
which may be brought before them. Now, that covers part of
the argument, but the balance of the argument is that this
Jury is here to determine whether a sentence of capital
punishment should be imposed on this man. It's my contentiot
Your Honor, that they cannot adequately make that decision
until they are informed of what it entails. Capital punish-
ment, Your Honor, is more than execution. It goes beyond
that; it goes to living on death row; it goes to the impact,
the uncertainty of execution date, the reprieves; it bears
on whether or not the sentence should be imposed in this cast
Now, it's my understanding that evidence which logically
tends to prove or disprove material facts which is at issue
in the case and every act or circumstance shaving to elucidat
or throw light upon a material issue or issues is relevant,
but the weight of the evidence is not to be considered. It
need only tend to prove or disprove the material issue.
Again, Your Honor, I think in determining whether or not the
death penalty is an appropriate punishment for the facts and
circumstances of this case, the Jury must first be informed
of what it entails. There is precedent for this testimony,
Your Honor, in the case of Curfew Davis v. The State of
Georgia, in which these exact same witnesses testified. I
would rely on that case for the proposition of relevancy.
BY THE COURT: Tell me again, you said one witness was
go ing to testify as to the prospects of rehabilitation or
something of this defendant? Tell me about that.
BY MR. STAPLES: Yes, sir. It's my understanding that
Mr. Smith may statistically be able to show the prospects of
rehabilitation for death-row defendants. Then I would atte
to have him make a statement based on his experience and
knowledge of the prospects of rehabilitation for this defen-
dant.
BY THE COURT: What statistics 16 he going to be rely-
ing on?
BY MR. STAPLES: Statistics gathered by him concerning
the application of the death penalty in this State. How
many have been executed, who they were, and what has happene
to those who have not been.
BY THE COURT: Well, of course, nobody has been execut
for a number of years. :
BY MR. STAPLES: Well, this is within a time period in
which there were active executions, that's what the statist
are.
BY THE COURT: Of what people though? People who were
sentenced to death?
BY MR. STAPLES: Yes, sir.
BY THE COURT: And who were or were not executed?
BY MR. STAPLES: Yes, sir.
- 707 -
App p O
BY THE COURT: Go a little bit more in depth with me
as to what you're talking about, about rehabilitation, and
who he is talking about.
BY MR. STAPLES: It's my understanding that he has
experienced with death-row inmates, certainly, who were sen-
tenced to death for one reason or another, that had their
sentences commuted; the prospects for their rehabilitation.
BY THE COURT: How is that relevant? It would be rele-
vant perhaps, if he had statistical surveys concerning peop]
who had not been given the death penalty and had been given
life imprisonment and what their rehabilitation record was.
BY MR. STAPLES: I'm not sure whether he has that or
not, Your Honor.
BY THE COURT: Do you want to find out?
BY MR. STAPLES: Yes.
BY THE COURT: Go ask his.
BY MR. STAPLES: Your Honor, I have discussed that with
two of my witnesses. One witness has actually po statistics
one witness has statistics dealing with persons sentenced
to death and commuted to life. Both witnesses have actual
knowledge of persons given life imprisonment and their re-
habilitation.
BY THE COURT: What about --well, tell me again, other
than the manner of execution, what happens in between the
time or while the person is on death row, tell me other than
what we've just talked about, tell me what the other point 1
you wanted this testimony for.
- 708 -
Apps p ll
BY MR. STAPLES: I think with regards to that first wit;
ness, I think that was everything, was capital punishment
was more than the death penalty. I was attempting to show
that the death penalty was more than an execution.
BY THE COURT: I remember what it was. It had to do --
and tell me if I'm wrong, it had to do with who the death
penalty was imposed against?
BY MR. STAPLES: Yes.
BY THE COURT: And those are basically the three points
. BY MR. STAPLES: With regard to that witness.
BY THE COURT: You want to go on and tell me what the
other witnesses you propose will testify to?
BY MR. STAPLES: I have another witness who is a pro-
fessor of theology who will discuss the Biblical authority
for the death penalty in its foundation in the Bible; is
there any Biblical authority against the death penalty and c
those things be reconciled and if so, how. The purpose of
that is to show that the foundation upon which our laws were
built is Biblical authority, which Biblical authority does
not demand the death penalty.
BY THE COURT: Neither does the Georgia statute.
BY MR. STAPLES: I understand, but there may be those
on the Jury who do not understand. The purpose of that is
to inform them of that.
BY THE COURT: What is your next witness?
BY MR. STAPLES: The next witness is a man from the
State of Texas who has similarly witnessed 189 executions
- 709 -
Apps p!2
and will testify as to the ritual, again, what effect it has
All of these witnesses as I have told Your Honor, have
previously tescified as expert witnesses in cases over the
State.
BY THE COURT: In a case?
BY MR. STAPLES: Yes, sir, I believe they were called
case
to testify in the Dawsonville{ I'm not sure if they testifie
BY MR. CHARRON: First of all, I'd like to know if that?
was ever objected to, whether there's ever been a case that
holds that. The Dawsonville case obvious ly wouldn't because
that case was dismissed against those defendants at some
point in time. I don't know the other cases that Barry
cited, I'd like to know if there was any objection raised.
So, I don't know whether the fact that one Court may have
allowed it in without any objection to it would not be rele-
vant. My concern is that 1 think he's invading --my argumen
is he's invading the province of the Jury, their sole dis-
cretion and determination, If he wants to argue to the Jury
that the death penalty is not supported by Biblical sense,
then that's not evidence, that's in his argument to the Jury
It would be improper to put a witness on and to classify hi
as an expert, if in fact that could be done, and 1 still ha
some serious doubts whether in 211 humility, they could be
qualified as experts in those fields and to offer them as
witnesses for mitigation, for extenuating factors of this
case and this defendant. Now, the old execution statistics
do not even apply to the statute of which we are applying
- 710 -
Ada p13
to this defendant, the old statute, so those statistics woul
not even apply, would not even be up-to-date and there were
no aggravating circumstances which the State had to prove
in those times. I seriously doubt their worth as any eviden
whatsoever. In a presentence phase, I have never known of
any evidence that's been allowed into the testimony, whether
it’s been before a Judge or before a Jury, that it does not
touch upon the defendant. If he wants to bring in a preache
that knows the defendant, that knows how he is, that's fine,
that's what it's meant for but to bring in a philosopher to
talk about the death penalty or its Biblicai sense is improp
and I object to it.
BY MR. STAPLES: Your Honor, the case that I was re-
ferring to is Davis v. State, 241 Ga. 376. 1 don't believe
there is a statement in that case of whether or not the evi-
dence was objected to. Certainly, it was considered in the
post-conviction review, the sentence review. I think the
Statement of that case as to what they had testified is as
follows, on p. 387: “Appellant called seversi witnesses. A
former death row inmate testified that he (the witness) had
been rehabilitated, and that ‘lifers' are not people who
cause trouble in prison. A newspaper reporter testified he
had written a book as a death house reporter. He described
an electrocution and said most of those he saw executed were
blacks. He was familiar with only two cases where parolees
who were serving life terms for capital crimes had returned
to prison as parole violators and committed heinous crimes.
- 733 -
NF d
A minister who had served a prison ministry testified that
|
in his study of executions in Georgia, only twice from 1930
to 1961 (31 years) was a wealthy man executed. A college |
religion professor explained his interpretation of the ‘eye
for an eye and a tooth for a tooth' philosophy of punishment
They also had a clinical psychologist who testified. They
were cross examined because On cross examination,” it states
that when the psychologist "was asked a hypothetical question
encompassing the facts of appellant's case, he responded he
would conclude his test results were probably wrong.” It
said: “In reviewing the death penalty” in that case, they
considered cases appealed to the Court since January 1970,
and they said: “We find similar cases listed in the Appen-
dix support
BY THE COURT: I think one of the cases of the rich
man was from my home county who was immortalized in the
Coweta County murders book.
BY MR. STAPLES: Your Honor, I would return to the
principle set down in Gregg that in this type of hearing
where the supreme penalty the State will extract is an issue
and there should be no unnecessary restrictions on the evi-
dence and the Court should approve any far-ranging argument
as long as it does not prejudice the defendant. The Court
again said they thought it was desirable for the jury to a
as much information before it as possible...”
BY THE COURT: The context they are talking in though
was where the defendant said that the vice in the statute
was that it was open and far-ranging and that is why they
made that statement. The Charge of the Court which has been
approved and which will be given in this case is as follows:
—
Mitigating circums - whi not constitute
a justification or gp excuse for the offense in question but
which in fairness and mercy may be considered as extenuating
or reducing to degree of moral culpability or blame. So, it
—
4S not an easy question to answer and I'm going to take a
few minutes and try to Satisfy myself about this.
(WHEREUPON, COURT WAS RECESSED AND THEREAFTER RE-
CONVENED AND THE FOLLOWING TRANSPIRED OUTSIDE THE
PRESENCE OF THE JURY:)
BY THE COURT: I will sustain the objection. You may
make an offer of proof.
E... SMITH, First having been duly sworn,
testified under oath as follows:
DIRECT EXAMINATION BY MR. STAPLES:
Q Would you state your name for the Court, please, sir.
A My name is E. L. Smith.
Q Mr. Smith, how long have you been in the State of
Georgia?
A All of my life, soon will be fifty-two years.
How are you employed?
I'm an educator in the
were with the State of Georgia?
*
8 0
~<
°
c
For six years, yes, sir.
— 713 -
| Arps plo
Q Prior to that, how were you employed?
A I was a Baptist pastor for twenty-one years.
Q Would you tell the Court something of your educational
background, please, sir.
A Yes, I was--went to Mercer University, finished high
school by way of GED and then at Mercer University in Macon in 195
during which time I served as student pastor in Middle Georgia.
Following the completion at Mercer, I served fulltime Baptist
churches in South Georgia for the next sixteen years. Following,
1966, I began teaching at the State Prison at Alto, simultaneously
went to schoo] st the University of Georgia and between 1966 and
1971, received a Master's Degree with two concentrations; one in
vocationai rehabilitation counselling and the other in adult and
continuing education. Since that time I have studied in the area
of correctional education.
Q In your training in vocational rehabilitation training,
did you say?
A Yes, sir.
Q Did you take any psychology courses?
A Numbers of courses in psychology.
Q What types of psychological courses did you take?
A Behavior modification, abnormal psychology, other stand
ardized required course.
Q Have you lectured anywhere?
A Yes, in most of the colleges and universities of Georgi
and a number outside the State.
Q Hs 2» you written any books?
My primary responsibilit was the area of death row, for several
| Stairs and the elevator didn't always work, so J began to be con-
} 1960 and 1965 I studied the subject of capital punishment in generdl
a Yes, sir, in 19065 I published a small booklet entitled
“The Chair."
Q Have you made a study of the death penalties?
A Yes, I did. In late 1959, I became pastor of the Collis
Baptist Church in Tattnall County adjacent to Georgia's State
Prison. Chaplain Jenkins was an older man who was Chaplain of
the prison at that time and unable to climb stairs and so he asked
me to help him with the Chaplain's work at the prison. For three
years, I assisted Chaplain Jenkins at the State Prison at Reidsville
reasons. To begin with, Chaplain Jenkins was not able to climb
cerned about the subject and began Studying the subject. Between
and the execution of the death penalty in Georgia in particular
and in 1965, as I said, published the sort of a documentary-type
of statistics on the death penalty.
Q You have made a sociopsychological study of the death
penalty?
A Of individuals on death row and 1 would not say I limited
the sociopsychological study to persons on death row, but to
who commit murder?
criminality in general.
Q Do you believe that people who commit crimes should be
punished?
a Yes, sir.
Q Do you believe that there is something wrong with —
° 735 -
AppF p's
A I believe there's something wrong with people who commi
crimes, whose behavior is abnormal or who have difficulty adapting
to regulations of a social order.
Q Expand on that for me, please, sir.
A Well, a number of people have done series of studies in
the area of abnormal behavior with the particular emphasis on
criminality and numerous individuals have attempted to establish
what is called or may be called criminality profile. I could not
Claim credit for the profile that I envision as a criminality pro-
file solely, but I have a concept of the profile of an individual
who commits crime.
Q What is that concept? Would you explain it for me?
a The description of the individual, Number one, he is
usually a very dependent individual. If you don't mind, I've made
notes here which are available if you would like to see them. Thi
individual is easily influenced by others around about him, by the
forces of society, by alcoholism, by various influences in the
community, very easily influenced by the forces around about hia.
He's generally void of the imposition of self-discipline. He's
anxiety-prone and he is --and this is perhaps the single factor
that is most usually true, in common language, he's a liar. He's
@ pretender; he fails to tell the truth particularly when he feels
it is in his own best interest. He's unable to accept himself.
I think this is rather significant. He's unable to accept himsel
because he expects more of himself than he's able to produce.
This is a common term we often refer to in prison; he has a champ
appetite with a beer budget. As a result of these afflictions,
- 716 -
h P. !9
he’s on the surface a totally self-centered individual,and the
last segment of this profile, he attempts and likes to blames othe
and other forces for his own b. havior, failing to take responsibil
for his actions.
Q You met Mr. Franklin?
A Yes, I have.
Q Have you read his psychological profile?
A I have read the psychological prefile prepared by
psychologists at the Jail in Marietta.
Q Does his psychological profile fit that of your crimina
psychological profile, sociopsychological profile?
A Some segments, yes. In others, no.
Q Tell me about that, please, sir.
* Well, both from my observation and particularly the re-
sults of the psychiatric examination or psychological examination,
he has been envisioned as a very dependent individual; he tends to
blame forces, parents, drugs, blame other forces for his own be-
havior. I could not --do not kne if he tells the truth but in
several areas --but the problem with a psychological profile in
criminality is that you cannot limit it to persons who have been
convicted of crimes or who are standing ready to be convicted of
acrime. Many of the segments of a psychological profile in
criminality would fit me. In fact, I never hesitate when I began
to study some of these very factors are elements of my own charact
my own behavior, but yes, in answer tc your question, Mr. Frankli
is apparently a very dependent individual, very insecure, frustrat
because of his dependency, angry because of his dependency upon
- 717 -
App P
drugs and upon other people, angry because he's a follower rather
than a leader; yes, sir.
Are you familiar with the ters apital punishment"?
Yes, sir.
How are you so familiar?
Would you repeat that question, sir.
How are you familiar with it?
> 3B » © F 2
Well, I have spent a great deal of time on death row,
not as @ prisoner but as a Chaplain's aide and assistant.
Q Have you observed men on ith row?
A Yes, I have.
Q What does the term “capital punishment" encompass?
A Well, it encompasses first and foremost in this country
because of the extremeties to which we go in democracy, to explore
all of the appellate processes, first and foremost, capital punish
ment is the pending of a great deal of time awaiting death; avait
ing an appointed time for death. It's sitting in a cell, just one
wall separated from the chair, the electric chair; it's a man sitt
reading, primarily the Bible, reading 211 kinds of materials; it
is the anguish of knowing the sentence that has been passed upon
you and the helplessness that you as an individual feel and not
being able to affect that decision, knowing of the potential that
death is awaiting you sometimes two weeks away, sometimes years
away. It's far more than the act of the pulling of the switches
and the allowing of the current to pass through your body.
Q Does that have an effect, that waiting have an effect
on people on death row?
— 718 -
App. E pal
A From my observation, it has a drastic effect. On one
occasion, a man in Massachusetts, two days after the Governor had
commuted his sentence, killed himself in his cell because of the -
evidently, because of the mental anguish through which he passed.
BY THE COURT:
Q Could it have been because he didn't want to spend the
rest of his life in prison?
A I believe, sir, he was not aware of the fact that his
sentence had not been commuted.
BY MR. STAPLES:
Q Have you, from being on death row, observed the facilit
for electrocution at Reidsville Prison?
A Yes, sir.
Q Describe those for me, please. Perhaps you could descr
it easier with the ritual of execution.
A Right now, Georgia has, I believe, sixty people on deat
row. The facilities that are ordinarily referred to as death floo
would not accommodate but seven prisoners at one time, there are
seven cells on the top floor of the State Prison. I've neve: seen
two men awaiting the death penalty in the same cell; they were
always kept in separate cells, so I'm assuming they still are kept
in separate cells. In order to provide for this increased number
of people who are awaiting death, ! assume that they house them
in some other area, but death row as I know it, is the top floor
of the prison. Facing the prison, you are looking at the prison
from the front, you will see the top floor on the left top, indivi
ual’s left looking at the prison, an area that encompasses the
- 719 -
Abd. F p22
cells. A man is taken from his cell the morning of execution;
prior to this a spot is shaved on his head so that the electrodes
can be properly attached to his head; an area shaved on each leg
between his knee and his ankle so that the electrodes can be place
there, very similar to, if you had an EKG, the same attachments,
similar attachment is used; a solution similar to vasoline is *
on the body; the man them is led from his cell down a very short
corridor. Prior to being on death row, I'd heard of the last mile
and I envisioned it as being an extended corridor but this is not
the case at Reidsville. The distance from the cell that is farther
est away from the electric chair is not more than from where I'm
sitting to the doors at the rear of the Courtroca, down a narrow
hallway. The man is led out this narrow corridor and out a door
and this door goes out on, I want to say a balcony, but it's not
really a balcony, it's an area that there are steel bars overhead.
He walks out the door underneath these bars, a wall on either side
and he's told, vou may look up and see the sky for the last time.
He walks up approximately ten steps, making 4 lefthand turn, after
he exists this door, walks approximately ten steps and back again
to another door which leads to the area and as he walks in the
other door, he faces the electric chair. The electric chair, again
the first time I saw it 1 was very dissappointed because | suspect
my most painful experience has been in a dental chair and I envi-
sioned the electric chair to be something like a dental chair with
all the attachments around it but it wasn't. I was really dis-
appointed. It was a gross, old wooden chair much like a straight
chair, not a rocking chair, sitting on 2 platform and the only
- 720 -
App. p23
mechanics unusual about the electric chair is that it has two backs
in it. This is --one back is the standard back of the chair stand
ing straight up, erect, but between the body of the person being
electrocuted and the stationary back, there is another back which
is fastened on hinges at the bottom. The individual is strapped
into this chair with tight belts around his chest, tight straps
across his legs and to the bottom of the chair. After these leath
straps are pulled as tightly as they possibly can be pulled, a te
wooden wedge, approximately sixteen inches in length and coming to].
a sharp point at the end, approximately four inches in diameter
at the top; this wedge is placed between the two backs on the chair
and a hammer is taken and the wedge is driven down between the twe
backs so as to force greater pressure on leather straps that go
around the man's body. I asked about this and the explanation was
given that when the current --of course, when the current hits the
man, it hits him with such force that the bones of the body are
broken and in order to --after the electrocution has been facilitat
in order to move the body, they lay out the body and this helps
to keep from breaking the back, so that the corpse will be easy
to handle when it’s moved from there to the table a few feet away.
The electric switches are in behind the electric chair. I had
often heard also that there were three switches and neither of the
men who pulled the switches knew who actually facilitated the caus
of death. This is not the case. There actually are four switches}
two switches are thrown by the throwing of handles and then on aa
wall where the switches are located, two handles are thrown, there
are two ropes coming through holes and the same two people who
9
App E P. 24
— — — 32 — — —
pull the switches, pull the ropes so as to increase or decrease
the amount of voltage and amperage that go into the body of the
individual.
Q How much current is used?
A It varies. I've heard they turn 20,000 volts; it de-
pends on the number of amps. As I understand it, 440 volts with
accurate amperage is adequate to bring about death. Death does no
always occur on the first throwing of the electricity, however.
A deacon at my church at Collins was the doctor who proclaimed the
men dead and on numerous occasions, he's had to request additional
amperage and voltage.
Q Where do those men stand who are throwing the switches
in order the see the doctor?
A I didn't understand your question.
Q Where do the men who are throwing the switches stand
in order to see --
A They are behind the electric chair and after the initia
Switches have been thrown and the amperage and voltage in the
electrocutor's opinion adequate to kill the nen, he Steps backward
and as he steps backwards, he can look to his left and see the
doctor and see whether or not the doctor requires additional volta
or amperage.
Q Is your knowledge of electrocution based on firsthand
experience?
A Yes, sir.
Q Are you familiar with execution statistics in this Staté
A Yes, sir.
Q
A
statistics
in Georgia,
Statistics
kept. So -
Q
0
of Georgia.
a total of
Q
A
executed.
9
A
could be hung in a county seat town and few reports that occurred
of the Department of Justice in Washington.
the execution of persons during that thirty-one-year period, with
What time period?
From the time period --not until 1930 were uniform
kept in this country. Prior to that time, a person
reports of it went to Atlanta but there were no uni for
kept in Washington. After that time, statistics were
Is that where you get your statistics?
~-the statistics that I have are based from 1930 ni
Where do they come from?
They came from the Uniform Crime Statistics Reports out
Is that for the State of Georgia?
All states and with particular emphasis on the State
Have you become familiar with those statistics?
Yes, sir.
What do they tell you?
Number one, they tell us that Georgia led the nation in
361 individuals executed.
And that's from 1930 to 19617
1961. If we bring it up to 1964, 366 individuals were
And since then?
And since 1964, no one has been executed in Georgia.
Q What else do those statisticstell you?
A Of the 361 that I studied most closely, 295 I can
preface that by saying, the statistics very glaringly said one
thing; that historically, only the poor are executed. Of the 361
executed in Georgia during that period of time, 295 were black in
the State, and of course, blacks were poor at that time --
Q Pardon me, sir?
A I accounted for this as ne so --1 found it not to be
so much a racial problem as an economic problem. In the studies
I made, if the black were wealthy, he was not executed. If the
black were the “friend'of a prominent white, wealthy white, he was
not executed, so money made the difference.
Q Have you made any study or do you have any knowledge of
the recidivism rate?
A Recidivism? It's. a Baptist word, yes, sir, fallen from
grace.
Q People who have been given life sentences.
A What is your question about the people who have been
given life sentences?
Q Do you know anything about their rate of fall from grace
A Well, persons are given --we have to remember that unti
1966, Georgia had fourteen offenses considered capital, including
burning a railroad bridge, so persons were given life sentences
for other crimes other than murder or armed robbery or kidnapping.
Warden R. P. Balcolm was Warden. at Reidsville State Prison for
about twenty years, --
- 724 -
ö
App. Fr p 2
e
Q That's the father of the present Warden?
A That's correct, Charles is Warden Balcolm's son. Warde
Balcolm --by the way he accepted the job and they imposed the dea
penalty, he accepted the job only --and the State law at that time
said that the Warden had to witness executions--Warden Balcolm
accepted the job only if the State would hire a Warden in charge
of executions, so he never witnessed an execution. Warden Balcolm
and I have talked on many occasions and his statement to me, one
that I remember particularly, is ‘that persons who have committed
capital offense and have been sent here and not executed are the
best prisoners I have. ‘Those who have worked in my house, house-
boys, have been murderers, largely speaking, over the years.’ I
cannot verify this but statistic that I have read someplace say
that of the murderer, the most usual type of murderer, only approx
mately two to five per cent repeat their act. Now, this excludes
murder for hire.
Q Is there anything else you would like to tell us that
would have any bearing on this case?
A On this case? I think it's rather ea Mer that as
I] talked to Mr. Franklin yesterday and I've met his mother and
father, I mentioned a moment ago that historically in Georgia,
blacks have been executed. I also qualified that by saying that
historically in Georgia the poor have been executed. Since the
early ‘60's the tables have turned; a black no longer has inferior
representation; a black today this young man's age would perhaps
have a team of lawyers here but here is @ poor white man and the
tables have turned in this particular case and perhaps his defense
- 725 -
falls into soaething of the same category, that the defense of
blacks did over a period of thirty years, Court-appointed attorney
without the brigade of lawyers and facilities available.
Q Anything else?
A Not to my knowledge.
BY MR. STAPLES: Your witness.
CROSS- EXAMINATION BY MR. CHARRON:
Q You stated that you made all these observations about
death row between the years of 1959 and 19627
Yes, sir.
Have you been to Reidsville since that time?
Yes, sir.
On death row?
Yes, sir.
oD >; © » 2 >}
When?
A I believe it was 1968 during the time of the Preston
Cobb case. I visited and worked in the Preston Cobb case.
Q Since that time have you been? ‘
A No, sir.
Q Your book, “The Chair,” that was written in 1965 with
facts and figures of what you compiled for the three years you
were in Tattnall County and your recollections?
A No, no, they are not compiled on recollections; on
statistics, study in the various libraries of the country. I spe
five years in the study of it.
Q You compiled it from other statistics across the count
A Yes, sir.
Q And regurgitated them in your book?
A
Yes, sir. I don't like the word “regurgitated,” I'd
rather --
App. — i 726 -
Q Well, that's what they are; they're not your statistics
you got them from somewhere else.
A A compilation; there's a compilation, right.
Q And the criminality profile, that concept is not your
concept either, is it?
A Combination of Dr. Samenow, the book “The Criminal
Personality,” it's part of his work, yes, sir.
Q You read that book and you adapted your profile to what
he has said?
w@ A 1 don't know whether it's fair to say that 1 have a
profile. I have an idea of a profile based on experience of work-
ing with prisoners from State Prison at Alto, young offenders;
working with people at Reidsville and people at Buford's Rock
Quarry Prison; working with criminals in The Bureau of Prisons.
Q You also stated that you read from the psychiatric exam
ination concerning Raymond Franklin --
A 1 qualified that to say the psychological profile.
Q Psychological; this is a piece of paper that you read
someone else's findings from. You didn't conduct any examination?
A No, I did not, no, sir.
Q And when did you meet Raymond Franklin for the first
time?
Yesterday, sir.
Observed him less than twenty-four hours?
Yes, sir.
o > & >
The Massachusetts killing that you talked about, you
read about that, the san that killed himself?
A Yes, sir.
- 727 -
r Aso. F. d. 30d
DIRECT EXAMINATION BY MR. STAPLES:
BY MR. CHARRON: I have nothing further.
DR. ROBERT OTTO, First having been duly sworn,
testified under oath as follows:
Q Would you state your name for the record please.
A My name is F. Robert Otto.
Q Is it Dr. Otto?
A Yes.
Q How are you employed, sir?
A I'm on the faculty at Mercer University here in Macon.
Q In what field?
A In the Department of Religion and Christianity.
Q How long have you been in that?
A Twenty-three years.
Q Prior to that?
A Prior to that I was in graduate school.
Q Would you give us the benefit of your educational back-
ground, sir. ‘
A I received a Bachelor and Master of Arts Degree from
the University of Minnesota; a Bachelor of Divinity from the Bethe
Seminary in Minnesota and a Master of Theology and Doctor of Theola
from Southern Seminary in Louisville.
Q
+
0
*
Have you written any works?
Just short articles.
Have you lectured any?
I've been lecturing for over twenty-three years now.
Q Are you a member of any societies?
A Well, the Professional Theological Society and Society
for Professors.
Q Have you ever appeared as a witness before in a case?
A Yes.
Q How many times?
A I believe it's three times.
Q Have you made a study of the death penalty?
A Yes, I have.
Q In what context?
A In the context of religiow and philosophical theologica
thought.
Q Do you believe that people who commit crimes should be
punished?
A Well, yes, I don't look upon that, the death penalty
in that kind of issue. It's not # question of death penalty or
nothing. It's a question of validity and appropriateness of the
death penalty. Yes, I do believe in punishment, if that's what
y you're asking.
BY THE COURT:
Q Do you think it appropriateness in general, is that
what you're talking about?
a If I understand you, yes.
Q Appropriateness of the death penalty in general?
A Right.
BY MR. STAPLES:
Q Is there any Biblical authority for the death penalty?
A This --your question now involves a rather subtle and
sophisticated analysis of what those who are members of the Judeo-
Christian faith acknowledge and accept as their authority and if
| that authority is seen, you know, as a historical document that
in itself has had a history, then one can say that at a certain
Stage of the history of this Jewish-Christian revelation, there
were specific laws that called for a death penalty, yes, but the
whole document itself has a history and has a history of the devel
ment of that idea.
Q Expand on that for me, please, sir.
A Yes, you can find very unambiguous and exquisite state-
ments in the Old Testament that call for the death penalty on a
number of different occasions or for a number of different situa-
tions; the death penalty for murder, the death penalty for adulter
and incest, death penalty for a child either striking or insulting
his parents, death penalty for blasphemy; a number of specific
death penalties in the Old Testament. The one that I would assume
that is crucial to our consideration is the one that has to do wit
taking someone else's life, killing or murder. The most exquisite
words and those used most frequently are found in both in the Book
of Genesis and the Book of Exodus. In Cenes i, in the paraphrase
of the words would be, “He who takes man's blood by man shall his
blood be shed," which I think is quite clear, and a different kind
of statement in Exodus, “An eye for an eye and a tooth for a tooth
When one reads that, you know, some twenty-five hundred years afte
the writing of those words, it's very easy to misunderstand their
import; that is, in the context of when those words were said as
- 730 -
an expression of the Rhine, revelation of the Hebrew god. That
limiting of executions, to say, one person, was already a moral
| advance. What I mean by that is that prior to this time, if you,
i} for example, had in any way been responsible for the death of a
} brother or sister of mine, I might in revenge kill seven of your
i} brothers and sisters, so that an eye for an eye and a tooth for a
| tooth,’ or ‘He who sheds man's blood by man shall his blood be
shed, you see, is already an attempt to show that even the crimin
f must receive some kind of consideration. So, this is an advance.
i Now, to take that as an absolute statement for all centuries that
unfold after that is to misunderstand the very nature of the sacref
| Scriptures of the Jew and the Christian. One of the, I think,
crucial stories is in Genesis, Chapter 4, the interesting story of
|} what is called the first murder, the Cain and Abel story. The
j murderer in his dialogue with the Jewish god expresses a concern
that because of what he's done, his own life is not safe and the
interesting key to the insight here is that God puts a mark on
him indicating that even the criminal has some consideration for
*
|} the compassion in the sense of justice on this part of this God.
*
This is already a remuneration, you see, of how you handle a crimi
| nal who has murdered. Now, aS you move on through the centuries,
I have to leave out a good deal but to get to the heart of it, you
have what is called the prophetic movenent in addition to the
development of Hebrew law and in one of the most fascinating pro-
phets, the prophet loses, there is the unfolding in dramatic form
of a new kind of awareness of the nature of this God and what it
implies as to how Jews are to relate to one another and other —-
- 731 -
Mp P, P. 30
F ̃ ͤnwU“¼.Üꝛĩß⁊:̃—˙—.öÜ1I —˙üm ²˙¹üm wt
beings; that is, the prophet's own experience with his wife be-
comes a sort of a window for him in terms of a continuing dialogue
jwith his God, a further kind of manifestation of who this God is
and hence, what He expects. The prophet discovers after some time
i that his wife is unfaithful to him but he wishes to remain faithfu
to her essentially because he still loves her and be does everythi
| to re-claim her and change her and nothing works and she goes from
| bad to worse until finally in desperation, he divorces her. After
the divorce, his wife becomes even worse and on one day when he's
going to the market place, he discovers that she's on the block
i for sale and discovers hat he still loves her and pays the price
to buy her back. Now, the interesting thing is that the prophet
uses that as an indication of --this is the nature of our God, that
even judgment, and in this instance, judgment, that this was a
judgment of his own people, that judgment is always in a context
i somehow or other of redemption, of love, of rehabilitation, of
reclaiming and this becomes a conditioning factor upon a Jewish
understanding of how you apply the law, particularly with regard
to taking human life. Now, when you get in the New Testament, you
don't find any exquisite statements about death penalty as you do
in the Old Testament but you find that the center of the faith for
the Christian, who is Jesus of Nazareth, that Jesus as a matter of
fact, apparently understands and interprets himself in his own
vocation in the light of his prophetic movement and what he does,
if I could put it as briefly as I can, is to take the genius or
the spirit or the thrust of Hebrew law, let's say, and then inten-
sifies it, and I'm thinking for example of two things, one a sermog
— 732
: App. F p.35
on his part and the other an episode. Perhaps the most famous
| episode is his encounter with the woman caught on adultery who
is charged with this and then faces execution by stoning because
I this is what Hebrew law required, and Jesus puts himself quite
Clearly in opposition to the law at this point in the way he handl¢
the case. Now, that is verbalized more exquisitely in what is |
known as The Sermon on the Mount in which he introduces the con-
trast which again is very subtle and has to be read very cerefully
He introduces a contrast between himself, say, and the Hebrew law
of the past. He puts it in this way: "You have heard it said of
old but I say unto you." Now, the interesting thing is, he does
not entail that there is a fundamental contradiction between the
past, or Hehrew law, in what he does; what he's really trying to
say is that ‘I'm catching the spirit or the thrust and I'm inten-
sifying it. You've heard it said of old an eye for an eye and a
tooth for a tooth, but I say unto you forgive and love, and what
he's really saying, os far as I can see and it's not just myself,
at this peint, he's catching the original thrust or spirit of ‘an
eye for an eye, a tooth for a tooth,' some e for the
ones who are responsible for a particular crime, and he's saying,
in effect, that when it comes to human life, there is a kind of
} ultimacy here, an ultimacy that finally is a prerogative of God
and although there is punishment, punishment is always couched
finally and ultimately within the terms of what is also concern
and love for the criminal and I suppose this is finally acted out
in his own death. You know, for me, the atonement is not just a
beautiful idea or a theological-created something; I think it's
- 733 -
App., p.
finally a demonstration of the life of The Incarnate One; that no
man or woman ever falls so low that he's beyond the reach of love,
of redemption, rehabilitation. That if I could, you know, be very
sketchy, it seems to me that this is the thrust of both the Old
Testament and the New Testament, that direction.
Q What you're saying then is that in light of the histori-
analysis of the death penalty with regard to your Biblical authorif{
that a sentence of death is not commanded as punishment.
A Yes, and as I say, this is why I think this is very
important to say because most of us who are one way or another
adherents of the Judeo-Christian faith, do as a matter of fact,
whether we are aware of it or not, operate on the basis of some
sort of religious authority, which is the Bible, and many times
we do make the mistake of treating the Bible something like the
Korans did of the Muhammads, something already written and lowered
| down and there it is, whereas, for the Hebrew and for the Christian
the Bible is an historical document, see, it has its own history
and development and in the last analysis, where the Christian, the
Old Testament is read through as it were the eyes of Christ, and
that's where ‘the eye for an eye, a tooth for a tooth,’ is given
very different kind of meaning. It becomes transcended.
Q Are you acquainted with Raymond Franklin?
A Yes, I have met hia.
Q Do you think the principles that you have expounded upo
apply to the facts and circumstances of this case as you know then’
a Yes, I do.
BY MR. STAPLES: Thank you.
- 734 -
App E 8.377
II ²˙¹wm ⁵«²w-ꝛ K ½—¼¼T¼½ eran
the course of the events that happened.
— — — hh— — +
CROSS EXAMINATION BY MR. CHARRON:
Q When did you meet Raymond Franklin?
A I met him yesterday.
Q Less than twenty-four hours ago?
A About that.
Q And when did you find out the facts and how do you know
the facts of this case?
A Well, I've read his statement, confession, whatever you
call it.
Q Have you had the benefit of any of the State's evidence
at all?
A Some of it, yes.
Q Which evidence?
A Well, the evidence in terms of some of the details of
what he did prior to, at least this particular event and during
Q You haven't had the benefit of all the evidence that
the Jury has had, right?
A Well, I don't know if I have all of the evidence, I
don't know what they have received.
Q Photographs and statements of other witnesses.
A No.
Q And you say you've been in religion for twenty-three
years, right? :
A Teaching.
Q How long before that, what capacity were you in?
A Well, I was in graduate school. I did parttime teachi
in @ college in Minnesota while in graduate school and I served a
- 735 -
hop. P. p. 38
small church for a period of about four years. This was 211 prior
to coming to Georgia.
Q When was that, sir, what years?
A Well, let's see, 1 was the pastor of that church betwe
1944 to 1948; then from '48 to 52, I was teaching while also doing
graduate work in philosophy.
g Are you conscientiously opposed to the death penalty?
A Yes, I an.
Q And have you been, in fact, since World War 117
A That pushes me back to when I was rather young. I can't
Say that the issue, as such, I faced that early. Now, because of
World War II, I had to face the issue of war but the specific .
of the death penalty was not until later.
Q Were you conscientiously opposed in the war?
A Yes.
BY MR. CHARRON: That's all I have.
BY THE COURT:
Q Dr. Otto, Hosea s wife, that was Gomer?
A Right.
DON REED, First having been duly sworn,
testified under oath as follows:
DIRECT EXAMINATION BY MR. STAPLES:
Q State your name for the record.
A I'm Don Reed.
Q How are you employed, Mr. Reed?
A I'm the Publisher Emeritus of the Hunstville Item, the
daily newspaper in Huntsville, Texas; also serve as a consultant
- 736 -
xp F. p.35
to the paper for the Harthanks Communications and a columnist.
Q How long have you been so employed?
A Forty-one years.
Q Would you give as the benefit of your educational back-
ground, please, sir.
A Would you repeat that question, please.
Q Would you tell us about your education?
A I have a degree in history, Liberal Arts Degree from
the University of Chicago. I was trained in the newspaper bus ines
by the Chicago Tribune for a period of four years before I moved
back to my native State of Texas, went to work for the McAllen
Daily Monitor for @ short period and then for another short e
for the Bay City, Texas Tribune and then accepted a position to
operate the paper in Huntsville.
Q Could you give us the benefit of your employment expe-
rience after that; you've been an AP correspondent?
A Well, in Huntsville, 1 was named the Associated Press
Correspondent and this included covering all the news that develo
*
from the Texas Department of Corrections and at that time it was
commonly known as the Texas Prison System and this also included
covering executions that are performed at the Huntsville Unit of
TOC.
Q Have you done any lecturing?
A On the subject? I lecture at regular intervals at
least one semester for the Department of Philosophy's class of
death and dying at Sam Houston State University at Huntsville.
I've lectured on other campuses at Austin, the University of ss
» t-
. E p- 0
University of Texas A. 6 M. and other places.
Q You have made a study of the death penalty?
A Well, I have made a study of the death penalty and in-
| cluded our complete criminal justice system because it was tied in
Q Do you have firsthand knowledge of the ritual of execu-
tion?
A I certainly do.
Q How many executions have you seen? |
A I have witnessed 189 executions covering the period of
January 1938 through July 30, 1964, when the last execution was
held in Texas.
Q These have been in the State of Texas?
A Right.
Q Have you appeared on any television programs?
A I've appeared on a number of television programs. I
I was on Television Debate, a program with the late J. Edgar Hoover
in Washington, the first color news TV on NBC; I appeared on the
David Frost Show, weekend television in 1973, when they debated
whether or nct we ought to remove the restriction against capital
punishment. Some people wanted the thing back, capital punishment
Ive appeared on NBC's Today Show, I've appeared on NBC's Nightly
News and television stations in Texas and elsewhere.
Q Have you written any articles on the subject of capital
punishment?
A Yes, I have authored a book on capital punishment which )
was published by Press of Houston in 1973 entitled “Eye
Witness." The book details my experiences as a death house report
° 7m °
„7% ˙ ᷣ . ee ! ee e Ü.. ee Se ee ee pee ee ay ee
Q Do you believe that people who commit crimes should be
punished?
A I] certainly do.
Q Are you opposed to the death penalty?
A At this time, I am. I wasn't always that way.
Q What was it that changed your mind?
A Well, after witnessing a number of executions there at
the prison in Huntsville, I came to one conclusion, that apparently
there must be a better way of serving society than executing N
Going back to the beginning when I witnessed my first execution
and didn't like it, I thought to myself, ‘Well, this is a person
that's been convicted by a jury of his peers,’ and I learned later
that it wasn't his peers, ‘Here's a man whose case has been ——-
by the Texas Court of Appeals'which is an automatic thing on
capital cases, and as far as I was concerned, this is the law and
this is what it was.
Q Have you appeared as an expert witness on the death
penalty in any cases?
A In the last several years I have, I get regular calls.
In addition to appearing here, I turned down two proposed assign-
ments that I couldn't make because of prior commitments, one in
Louisiana and another one in Memphis, Tennessee. I have appeared
at six or seven capital trials in Texas; appeared in several in
Georgia, including the Dawson Five case and a case in LaGrange;
I appeared in a case in Miami.
Q The LaGrange case was the Curfew Davis case?
5 That's right, and other cases.
- 739 -
5 App. E p. 9
Q Have your opinions been expressed in the written media
A Yes, they have.
Q Give us an example of some of your works.
A Well, Time magazine did a --I didn't make the cover, bu
I did make the Press section, and they had a story on me. The
Methodist publication which at that time was called Together,
and they had a feature story, editor and publisher had a feature
story on se, Texas Parade and the Associated Press several years
ago sent Jules Lowell to Huntsville, he's their major feature
writer and he did a big feature which was illustrated with art wo
which appeared on their international tauchette. By that, I mean that
goes to member papers of the Associated Press all over the world.
0 Could you give us the benefit of your experience view-
ing @ ritual execution. Could you explain that for us, please,
how it works’ and what happens.
A . Well, you know, on the face of it, it doesn't seem like
it’s very much. It only takes about six minutes to execute a per-
son in Texas at the time we did it. Its een begins
the day of the execution or the day before midnight and it begins
early in the morning when the Assistant Warden goes to death row
and reads the death warrant to the condemned man. After that, of
course, the Chaplain and his family are allowed to visit with the
condemned person until 3 o'clock in the afternoon. At that time
he is served his last meal. Following that ritual, he is taken
out of his cell, they remove his prison clothing; he's bathed,
shaved, and they shave the top of his head so there is a bald spot}
7
- 7406 -
App F. P. 4
;Minutes of 12, the Warden, using a large key, will tap on ti. door
and it's a signal that they are ready and he's taken out of his
[death chamber, the Warden stops the procession and asks the con-
ja statement, other will say, , I don't have anything to say,
something to behold and up to that point, it's not too bad. Then
tioner goes into a room behind the chair. That room contains the
to hold the electrodes on the head They also shave his left leg,
and then he is given what they term, a burial suit, that consists
of a blue serge Eisenhower-type battle jacket, a khaki shirt, khaki
trousers, cotton socks and scuffies. Then he's placed back in his
cell and from then on, all of the visitors have left ans he's with
the Chaplains and this ritual goes on until about 5 minutes of 12;
at that time all preparations have been made in the death chamber
which adjoins death row and there's a little green door that opens
into the death chamber, which is a very small chamber and -bowt 5
cell and he's escorted through the little green door after he bids
good-by to whoever he wants to, his cellmates on death row and
there's always two guards and a Chaplain, and as they get into the
denned man, ‘Do you have anything to say?’ Some of them will make
others will pray, some of thes Sing spirituals and it's really
.
[the Warden will point to the chair and in a very gentlemanly fashida
he will say, ‘Have a seat, please.’ He doesn't mean that facet iou
it's serious business with him, and usually, in most cases, the
man will walk to the chair unaided. We have had some that we've
had to aid to get into the chair but in most cases, they seem to
be resigned to what's going to happen and he's put in the chair,
he's strapped down, the electrodes are attached to his head and to
his left leg and when 211 that has been completed, then the execu-
- 761 -
| App. F. P. 44
generator that generates the power, the special power for the
j execution. The room contains also a one-way glass; the executione
can see everything in that room and you can't see him. Then with-
in several minutes or even less than that, the first charge of
electricity which is 1800 volts is applied and this causes the bod
to rise up several inches, even though it's strapped down; the
fists become clinched, they turn purple; the veins in the neck tur
purple; face turns purple, although he has a mask on his face,
sometimes there's the possibility of hemorrhage and blood comes
gushing from his nose. This voltage is held for about a minute
and then the second charge of electricity which is a lower voltage
400 volts, is applied and that's held for thirty seconds and then
there's a third charge, a final charge, ! showld say, of 1400 volt!
is applied and by that time you can hear the death rattle and they
let the current run out. The executioner comes out from behind
his wall and that's an indication that it's 411 right to unstrap
nie, but before they do that, the physician, the prison physician
walks up to the man, places the stethoscope on his heart and says,
"I declare this man legally dead.‘ He's uns trapped, he's placed
in a little stretcher, he's carried owt to the fromt of the prise
into a waiting hearse.
Q How does an electrocution affect people around them?
a Well, from my experience over the years, | have noticed
one thing, that no one of the stoff of the Texas Department of
Corrections that are designated to work at the institution ever
remains very long. Suddenly, find myself alone there at « tele-
| phone, calling the Associated Press. The only person thet 1've
ever noticed that stayed around a little longer was the Chaplain,
but the others head for home. As far as the inmate population,
you don't hear very much about it. They know that an execution
has taken place but thy don't talk about it and no one else talks
about it. It isn't something you just talk about.
Q How does I assume from your experience, you have else
been familiar with people who lived on death row.
A Yes, I've interviewed a good many of the people that 1
watched die and others who had their sentences commuted to life in
prison.
Q Explain to me how living on death row affects inmates?
A Well, I had found from my own experience and I'm sure
there are some exceptions, that the rule is that they are hoping
that it won't happen to me, and lately, that's been very true.
There's one man who was freed from death row and after the United
States Supreme Court made their decision n 1972, he had twenty-on
Stays of execution and I would talk to him after each Stay and aft
each execution, I don't know how many we watched walk that last
mile, but he kept telling me that he didn't think he would be —
ted, be vas hoping that something would happen to save his life
and he insisted right up until the day they gave him that life
sentence that he was not guilty of the crime of which he was charg
and today, he's one of the top inmates in the prison sys tes. *
taking educational courses, and he's got an associate arts degree
and I was quite surprised when 1 welked into the prison one night
and the prison Jaycees were holding ameeting and he was the presi-
dent conducting everything. I thought to myself, he did a better
job conducting than a lot of our people in the Rotary and Kiwanis
Clubs did.
App: F. pdb en,
Q Have you known anybody to be rehabilitated after their
sentence of death was commuted?
A I've known several personally and I know through the
records I have checked, I've researched the records of the more
than five hundred people that came to death row from the time that
the electric chair was insituted in Texas which was February 8,
1924, until July 30, 1964, and 361 people were executed during tha
period. Of those who were spared from the electric chair, if my
memory serves me correctly, there were about 85, 1 believe, who ha
their sentences commuted to life imprisonment, and of course, some
died in prison and there were 36 or 37 who received paroles, after
serving the required number of years. In Texas, you serve one-
third of your accumulated time; a life sentence is calculated at
60 years; you can get 500 years but the Parole Board still calcu-
lates everything at 60 years, so that would be 20 years and if
you were a State-approved trusty, and two-for-one time, 60 days
for every 30 days you serve, that would make you eligible to be
37 who were paroled, only 2 were returned to prison as parole vio-
lators and it's interesting te note that in each case, they were
returned for violating something that had nothing to do with the
crimes they had committed and in each case, the crimes that they
they violated DWI --
Q That's Driving While Intoxicated?
in about a year they were back in their community again and doing
— 744 -
App. F. p 47
r
considered for parole in around 10 or 12 years. And of that 36 or
were sent to prison for were heinous crimes and as parole violator
A That's right, and those two got dried out in prison and]
*
well, and I know one man, I know personally, he was graded as the
worst inmate that the prison system ever had. He was there in the
old days, he had murdered three or four people and he served almos{
thirteen years on death row because of getting stays and one thing
and another, and really, he was really mean. In my way of think-
ing, he was a real psychopath, but on the other hand, when he
finally figured out that he ought to do something with his life,
he turned it around completely an’ believe it or not, he was pa-
roled and today, he is a Church of Christ minister, ordained, doing
*
prison work for the Church of Christ and is stationed in Lubbock,
Texas, and he wrote a book which traced his life as a convict and
telling what can be done and he uses that as an example to work
with people in jails, people in prisons and conducts seminars and
does a lot of writing and preaching, also. Then | had another man
who I watched him get his head shaved three times; each time they
got ready to execute him, why the State came and that would last a
week or two and then his hair would grow back and they'd have to
shave him again and this happened over a period of two months and
finally, they commuted his sentence to life in prison and his crim
was robbery by firearms and murder and he became a model inmate.
In fact, he became the chauffeur for what we used to have as Gener
Manager. We don't have General Managers, we have Department of
Corrections Directors now, and through the assistance of the Gener
Manager, he was paroled and got a job with a large national firm
in their Houston office. He retired last year as the purchasing
agent for that company and I visit with him at regular intervals
and it's interesting, the philosophy that he has about this whole
thing and when I ask him what he does in his spare time, he says,
g Ape. F. d. 08 - 745 -
1
"I work with kids because I don't want them to get into the troubl
that I got into, and I said, ‘How do you relate to what has
happened in your life?’ He said, It's easy. I live with the man
I killed everyday.’ He said, ‘I'm trying to atone for something
that I knew was wrong.'
Q Are you familiar with Raymond Franklin?
A Yes, 1 met him for the first time this morning when
I talked with him in the jail here.
Q Are you familiar with the facts and circumstances of
this case?
A Last night I read some of the transcript of the case
and I got firsthand, quote and unquote, from the Atlanta Journal
while I was waiting to change planes, I picked up the paper and
there was the story by David Price of what happened in Court here
Monday, I believe.
Q You also I left with you for examination part of the
police files?
Yes.
The complete book that I had, you — that?
I examined that last night.
You examined other witnesses’ statements?
> © > © >
I did,
Q Based on your knowledge of death penalty and crimes
to which it has been applied and facts and circumstances of this
case, do you have any opinion as to whether or not it would be
Suitable punishment for this case?
A 1 don't --in my opinion, 1 don't think the death penalt
would be, to my way of thinking, would be suitable punishment in
- 746 -
|
App p NQ
any capital case. I'm like I feel like that about like I do
about Paul the Apostle. He was probably the worst murderer that
the world has ever known and I'm opposed to that form of so-called
punishment, if you can call it punishment. I think there is a
better way and a better way is to try to change these people through
programs of corrections and offer opportunities for them to ba.
better people and people that can be a force for good instead of
a force for evil. ;
BY MR. STAPLES: Thank you.
BY MR. CHARRON: No questions.
BY THE COURT: Thank you very much, Mr. Reed. You may
step down. I think that the testimony goes basically to
the --addresses itself to the Legislatures of various States
more than to the constitutionality of the penalty itself.
I adhere to my ruling. 0 eu
BY MR. STAPLES: For the record, Your Honor, we respect
ully except.
BY THE COURT: I don't think you need to on that.
*
BY MR. STAPLES: Your Honor, we have two quick matters;
Mr. Charron is prepared to enter a stipulation with regards
to medical records from the jail which the Sheriff has, in
we intend to introduce and we also have a matter of a stipu-
lation with regards to a tape-recorded statement.
BY THE COURT: As to the authenticity of it, I believe?
BY MR. STAPLES: Right, and I would tender both of thos¢
at this time for use this afternoon.
BY THE COURT: i will admit them and you can re- tender
them without, unless you wish, the necessity of reiterating
- 747 -
Ado. F P. 5D
RECEIVED
FEB 5 1982
N O. ee ve inc CLERK
a SUPREME conor ue
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1981
9 6174
RAYMOND FRANKLIN,
Petitioner
vs.
WALTER ZANT, Superintendent,
Georgia Diagnostic and Classification
Center,
Respondent
MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS
Petitioner RAYMOND FRANKLIN, by his undersigned counsel,
asks leave to file the attached petition for Writ of Certiorari
without prepayment of costs and to proceed in forma pauperis.
Petitioner's affidavit of inligency is attached hereto.
Respectfully submitted,
RECEIVED
IN THE FEB 5 1982
SUPREME COURT OF THE UNITED STATES Obes. „ ime ULERK
SUPREM™ ne
OCTOBER TERM, 1981
No. 81-
RAYMOND FRANKLIN,
Petitioner
W.
WALTER ZANT, Superintendent,
Georgia Diagnostic and Classification
Center,
Respondent ,
AFFIDAVIT OF QOUNSEL TO SUPPORT MOTION TO
PROCEED IN FORMA _PAUPERIS
I, Ronnie k. Batchelor, being first duly som accoriing to
law, say in support of the application of Petitioner, Raymond Franklin,
to proceed without being required to prepay costs or fees:
1.
I am counsel for Petitioner Franklin and | have agreed to
represent him without fee or reimbursement of any kind.
2.
Petitioner Franklin is presently on death row in Jackson, Georgia
under the custody of the State of Georgia.
3.
Counsel was appointed to represent Petitioner at his ‘trial
and n direct appeal. This counsel has abandoned Petitioner Franklin.
4.
I am informed and believe because of his poverty, Mr. Franklin
is unable to pay costs and give secuirty for same. I have been counsel
for Mr. Pranklin since September, 1980, and believe him to totally indigent.
5.
Because of the urgency in this case, there is insufficient
time to obtain Petitioner's pauper's affidavit. Petitioner's affidavit
will be submitted to this court as soon as practical.
8 1 GLE
RONNIE k. BATCHELOR
Attorney for Petitioner
4179 Memorial Drive
Decatur, Georgia
404/296-1500
Sworn to and subscribed
before me this 3 day
of FEN » 1982.
Notery Public, Georgia, Sate at Large
My Commission Expires Dac. 7, 1985
92
* —— rer~ — —
P RECEIVED ‘
FEB 5 1982
O7. „1e ect RR
IN THE SUPREME cnuer ne
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1981
No. 81-
RAYMOND FRANKLIN,
Petitioner
W.
WALTER ZANT, Superintendent,
Georgia Diagnostic and Classification
Center,
Respondent
ORDER GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS IN DISTRICT COURT
The verified Petition and exhibits of RAYMOND FRANKLIN, for
a Writ of Certiorari and for leave to proceed in forma pauperis having
been presented to the Court together with an Affidavit pursuant to
28 U.S.C. 81915 (1964), and it appearing from the Affidavit that Petitioner
is a person authorized by §1915 to proceed in forma pauperis, it is
ORDERED that Petitioner be and hereby is granted leave to
proceed in this Court without prepayment of fees or costs or security
therefor.
DATED: _,» 1982.
~~ “a —
Saige, ‘Suprene Court of the United States
8 a ae * 2 N e 55 1 1
ee
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IN THE SUPERIOR COURT FOR THE COUNTY OF N
STATE OF GEORGIA
RAYMOND FRANKLIN,
Petitioner HABEAS CORPUS NO. S02S
vs.
WALTER Db. ZANT, Superintendent ,
Georgia Diagnostic and Classifica-
tion Center,
Respondent
MOTION FOR COUNSEL AND PAYSINT BY STATE
OF INVESTIGATIVE AND LITIGATION EXPENSES
Petitioner moves the Court for counse] appointed by the Court and paid
by the State, and for payment of investigative and litigation expenses, and
shows that:
1.
Petitioner is an indigent who cannot afford payment of investigative
and litigation expenses necessary to diligently pursue his petition for Writ
of Habeas Corpus.
2.
Present counsel did not enter the case until after Petitioner's death
sentence was affirmed by the Georgia Supreme Court and certiorari denied in
the United States Supreme Court.
3.
Through present counsel], Petitioner has raised numerous substantive
errors in his petition for Writ of Habeas Corpus which were not previously
raised by his former attorneys, including whether the Trial Judge's charge
was improper.
4.
In order to fully and fairly present his case to the court, Petitioner
needs to subpoena witnesses and hire experts to testify concerning matters
Aerenoix F, e.
— — ——
in issue, but is unable tod@ so because he is an indigent who has been
incarcerated for more than two (2) years.
5.
Petitioner requires funds to advance his state Habeas Corpus cla in
as follows:
(a) To pay for legal counsel.
(b) To pay an investigator to conduct investigations in regard to:
J) Petitioner's Habeas Corpus claim that the Supreme Court of Georgia
is not properly reviewing cases in which the death penalty is imposed.
(2) Petitioner's Habeas Corpus claim that his death sentence is being
enacted pursuant to a practice by Georgia prosecuting authorities, courts,
juries and Governors to discriminate on grounds of sex and poverty in the
administration of capital punishment.
(3) Petitioner's Habeas Corpus claim challenging the composition of
the grand and traverse juries of Bibb County. The jury statistics for the
last 6-10 years must be fully compi led to properly present the cha) lenge.
(c) To pay subpoena and mileage costs of witnesses;
(d) To pay for expert witnesses needed to testify concerning Peti-
t ioner 's challenges to the Georgia death penalty statute.
WHEREFORE, Petitioner prays that the Court:
(a) Appoint counse] to be paid by the State;
(b) Authorize payment by the State of investigative, witness-lay and
expert and litigation expenses reasonably necessary for Petitioner's Habeas
Corpus case to be fully and fairly heard.
Attorney for Pet itioner
— Memorial 3
tur, Georg
404/296-1500
Appendix €, e. 2
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*
IN THE SUPERIOR COURT FOR THE COUNTY OF BUTTS
STATE OF GEORGIA
RAYMOND FRANKLIN, ad
*
Petitioner 0 HABEAS CORPUS NO
*
vs. 2
*
WALTER D. ZANT, Superintendent * *
Georgia Diagnostic and Classifica- *
tion Center, 2
7
Respondent 2
MEMORANDUM OF LAW IN SUPPORT OF
PETITIONER'S MOTION FOR COUNSEL
AND PAYMENT BY STATE OF INVESTI-
GATIVE AND LITIGATION EXPENSES
In an effort to establish factually the claims alleged in his ‘labeas
Corpus petition, petitioner has moved the Court to authorize payment for
legal counsel, an investigator, subpoena and mileage costs of witnesses and
expert witnesses. Motion, at 1. A mmber of legal precedents support this
request in the circumstances of this case.
There is a Federal constitutions! requirement that state post-conviction
procedures be fundamentally fair and adequate for the full adjudication of
Federal constitutional claims. “It is the solem duty of ... [state] courts,
no less than Federal ones, to safeguard personal liberties and consider
Federal claims in accord with Federal law." Schneckloth y. Bustamonte,
412 U.S. 218, 259 (1973) (concurring opinion of Mr. Justice Powel)).! See,
¢.g. McNeil . Gulver, s U. S. 109, 117 (1961); Wilde v. Wyoming, 362 U.S.
607 (1960); Sublett v. Adams, 362 U. S. 143 (1960). |
|
The ability of a prisoner to establish his Federal constitutional
|
|
claims in a state post-conviction proceeding will normally depend on the
evidence he can muster and this, in turn, may depend on his economic status.
While the State is under no obligation to equalize exactly the opportunities
of indigent and non-indigent prisoners to obtain e et from |
1. See, Case v. Nebraska, 381 U.S. 336, 344-345 (1965) (Concurring
opinion of Mr. Justice Brennan) (Footnote omitted).
Neeb o s, b. 3
criminal convictions, a number of precedents during the last twenty years
establish that the Equal Protection and Due Process Clauses of the Fourteenth
Amendment do not allow a State's criminal justice system to deprive indigent
| defendants of basic procedural rights to obtain redress fram illegal or
unconstitutional convictions simply because of their indigence. The State
must furnish indigent defendants with “the basic tools of an adequate defense
or appeal, when those tools are available for a price to other prisoners." :
Britt vs. North Carolina, 404 U. S. 226, 227 (1971).
The fundamental fact that courts have recognized is that It here can
be no equal justice where the kind of trial a man gets depends on the amount
of money he has." Griffin v. Illinois, 351 u. S. 12, 19 (1056). See, Coppedge
v. United States, 369 U. S. 438, 446-447 (1962). For “differences in access
to the instruments needed to vindicate legal rights, when based upon the
financial situation of the defendant, are repugnent to the Constitution." |
Roberts v. LaValice, 389 U.S. 40, 42 (1967). Thus, counsel] must be appointed |
to represent indigent defendants at felony trials, Gideon v. Wainwright, 372
U. S. 335 (1963); Powell v. Alabama 287 U. S. 45 (1931), and misdemeanor
trials, Argersigner v. Hamlin, 407 uU. S. 25 (1972), and on appeal, Douglas v.
California, 372 U. S. 353 (1963). A transcript for appeal may not be denied
to a convicted defendant simply because of his indigence, Griffin v. Illinois,
supra; Draper v. Washington, 372 U. S. 487 (1963); Williams v. City of
Oklahoma City, 395 U. S. 458; Mayer v. City of Chicago, 404 U. S. 189 (1971);
see also Rinaldi x. Yeager, 384 U. S. 305 (1966). An indigent defendant my
not be forced to pay a il & fee as a prerequisite for an appeal, Burns v. |
Ohio, 360 U. S. 252 (1959); glas v. Green, 363 U. S. 192 (1960). A |
convicted defendant may not be imprisoned simply because he is unable to pay ;
a fine, Williams v. Illinois, 360 U. S. 252 (1959; Tate v. Short, 399 U. S.
235 (1970). See also Boddie v. Connecticut, 401 U. S. 371, 375-377, 382-383
(1971). Cf. Britt v. North Carolina, supra.
The principle that the State cannot deny fundamental procedural rights
in the criminal justice system simply because of cconomic status is not,
however, limited to trials and direct appeals: “for the indigent as well as
for the affluent prisoner, post-conviction proceedings must be more than
formality.: Johnson v. Avery, 395 u. S. 483, 386 (1969(. In Johnson, the
Supreme Court of the United States invalidated the State of Tennessee's
prison regulation prohibiting its inmates from assisting one another in the
—— — —
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filing of State or Federal post-conviction writs. The Court held that the
impact of the State's regulation was to unconstitutionally ſorbi id]
illiterate or poorly educated prisoners to file Habeas Corpus petitions.”
393 U. S. 487, Subsequently, in Bounds v. Smith, Bi OF
S. Ct. 1491, 1498 (1977), the Court held that states were constitutionally
obligated "to assist inmates in the preparation and filing of meaningful
legal papers by providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law." In reliance upon Bounds v. Smith,
supra, @ recent federel district court opinion held that an indigent Habeas
Corpus petitioner was entitled to appointed counsel and payment by the state
of investigative, witness and litigation expenses to insure a fuil and fair
hearing. Gibson v. Jackson, F. Supp. ss (M.D. Ca., December 20, 1977).
Court decisions make clear that access to state post-conviction procedures
may not be limited by economic barricrs which have no rational relationship
to the merits of the legal claims sought to be raised. See Eskridge v.
Washington State Board of Prison Terms and Paroles, 357 U. S. 214 (1958);
Ross v. Schneckloth, 347 U. S. 575 (1958); McCrary v. Indiana, 364 U. S. 277
(1960); Smith v. Bennett, 365 U. S. 708 (1961); Lane v. Brown, 372 U. S. 477
(1963); Long v. District Court of Iowa, 385 U. S. 192 (1966); Gardner v.
California, 393 U. S. 367 (1969). Discrimination “based on indigency alone,“
Lane v. Brown, supra, 372 U. S. at 485, is impermissible.
In the present case, while the State of Georgia has not denied
petitioner formal access to its post-conviction remedies, by denying him funds
for investigators (legal resources available to more affluent defendants), it
has rendered these proceedings a “weaningless ritual," Douglas v. California,
supra, 372 U. S. at 358. And this has occurred is, a case where the highest
standard of regularity and fairness is required, for at stake is petitioner's
very life, since the State has exacted the “unique and irreversible penalty
of death,” Woodson v. North Carolina, 428 U. S. 280, 287 (1976) (plurality
opinion) (footnote omitted). In death cases, courts must be “particularly
sensitive to see that every safeguard is observed," Cregg v. Georgia, 428 U.S.
Appendix S ps
183, 187 (1976) (plurality opinion). For it "cannot fairly be denied
„ that death is a punishment different from all other sanctions in kind
rather than degree .... Because of that qualitative difference, there is a
corresponding difference in the need for reliability that death is the
appropriate punishment in a specific case." Woodson v. North Carolina, supra,
428 U. S. at 303-305 (plurality opinion) (footnote omitted.).!
The decision in Gregg v. Georgia, 428 U. S. 153 (1976), that the
Georgia capital punishment statute is constitutional on its face, does not
foreclose the possibility of petitioner's prevailing on his Habeas petition,
because it is a truism that a constitutional statute may be unconstitutional ly
applied, see, e.g., Yick Wo v. liopkins, 118 u. 8. 356, 373 (1886), and one of
petitioner's contentions is that as applied the death penalty is in fact
orbitrary, capricious, and discriminatory. ;
Petitioner's constitutional contentions present a classic instance in
which the "salutary principle that the essential facts should be determined
before sing upon grave constitutional questions is applicable.” Polk v.
Grove, 305 b. S. 5, 10 (1938).* mat principle applies “if there is a
reasonable likelihood that the production of evidence will make the answer to
the [constitutional] questions clearer." Borden's Farm Products Co. v. Baldwin,
293 U. S. 194, 213 (1934) (concurring opinion of Justice Stone and Justice
Cardozo). Expert testimony and empirical data have played a significant
part in the development of constitutional lav, sec, ¢.g., Brown v. Board of
Education, 347 U. S. 483, 484 n. 11 (1954); Alabama State Federation of Labor
v. McAdory, 325 U. S. 450, 460-61 (1945); San Antonio Independent School
District x. Rodriquez, 411 u. S. 1, 23-25 (1973), and would illuminate the
1. In Gardner v. Florida, U. S. 97 S. Ct. 1197, 1204 (1977),
the Court noted that: ie members of the now ly recognized
that death is a different kind of shacnt than any other which may be
imposed in this country.... From the point of view of the defendant, it is
different in both its severity and its finality. From the point of view of
society, the action of the sovercign in taking the life of one of its citizens
also differs dramitically from any other Icgitimate state act ion.“
2. “Judges make constitutional law as they make other kinds of law, on
the basis of facts proved and assumed. They are likely to do a better job when
their assumptions rest on information rather than hunch." Karst, islative
Facts in Constitutional Litigation, in KURLAND (ed.) TIE: SUPRIME
T960 at 7S. "See also, Wikely Judi t 7S. See also, Wikel, cial Netcrmination of Questions of Fact
ect ‘a Constitutiona Validity of Tegislative 2 38 TARV. . REV.
Agewdix , p. .
constitutional claims petitioner is raising in this case. Adjudication of
“important constitutional quest ions] on the pleadings is not favored, "
Wilshire Oi] Co. v. United States, 295 U. S. 100, 102 (1935), the appropriate
procedure being “determination by the ... [trial] court of the facts of the
case to which the challenged statute is sought to be applied,“ id. at 102-105.
See also, Morton Salt Co. v. City of South lutchinson, 189 F. 2d 897, 902
(CA10 1947); Cone v. Rorick, 112 F. 2d 894, 897 (CA4 1940).
The precise relief to be granted pursuant to petitioner's Motion
rests within the discretion of the Court. The parties might be instructed to
submit plans for the study of a representative sample of Georgia capital cases
arising under the 1973 Capital Punishment Statute. The Court might order
the parties to submit the names of social scientists who would submit plans
for such a study. Or the Court might appoint a special auditor to make
findings of fact, since Georgia law provides for the appointment of auditors
“in equitable proceedings if the case shall require it,“ Ga Code Ann 810-101.
The auditor is authorized to pass upon quest ions of ... fact" arising from
the contentions of the parties, and he is empowered to "subpoena and swear
witnesses and compel the production of papers." Ga Code Ann 810-103. Ile may
also hold evidentiary hearings, Ga Code Ann 8 10-104, and prepare reports,
Ga Code Ann Si0-201, containing findings of fact, Ga Code Ann 81-203.
While petitioner's motion necessitates the expenditure of State funds,
the rights of an indigent defendant are not subject to a balancing test when
his life is at stake. In Mayer v. City of Chicago, 404 U. S. 189 (1971), for
example, the City argued that it should not have to provide transcripts for an
appeal of right to indigent prisoners sentenced to pay a fine. The Court
flatly rejected this contention:
The city t that ... lan indigent defendant's] interest
in a transcript is out-weighed by the State's fiscal and
other interest in not burdening the llate process. This
argument misconceived the principle of Griffin ... Griffin
docs not represent a balance between the needs of the accused
and the interests of society: its principle is a flat prohibition
‘against pricing indigent defendants out of as effective an —
as would be available to others able to pay their own way.
invidiousness of the discrimination that exists when criminal
procedures are made available only to those who can pay is not
erased by any differences in the sentences that muy be
imposed. The State's fiscal interest is, therefore,
irrelevant.
404 U. S. at 196-97. The Georgia State Bar Association has recognized that
la] lawyer is often no better than the investigation facilities of expert
| Witnesses as his command.' Since It ſhe magnitude of a decision to take a
human life is probably unparalleled in the human experience of a member of
% Civilized society,“ Marion v. Beto, 434 F. 2e 29, 32 (Sth Cir. 1970), it
should be adequate to insure that this indigent, death-sentenced inmate has a
realistic opportunity to present in his state habeas corpus proceeding the
Federal constitutional contentions which may save his life.
Respectfully submitted,
Attorney for Petitioner
4179 Memorial Drive
Decatur, Georgia 30032
404/296-1500
1. Committee of the State Bar of Georgia on Compensated Counsel.
Assistance to the Indigent Person Charged with Crime, 2 GA.B.J. 197, 202
A ppemdin € p.7
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CERTIFICATE OF SERVICE
I hereby certify that I have this day served the copies of the within
and foregoing on the respondent in this action by placing true and correct
copies thereof in the United States Mail, first class postage prepaid,
addressed to respondent as follows:
Mr. Walter b. Zant
Superintendent
Gerogia Diagnostic b Classification Center
P. O. Box 3877
Jackson, Georgia 30233
and on the Attorney General by placing a true and correct copy thereof in
the United States Mail, first class postage prepaid, addressed as follows:
Hon. Arthur K. Bolton
Room 132
Judicial Building
Capitol Square
Atlanta, Georgia 30334
This 19th day of May, 1961.
Halen
Attorney for Petitioner
R peer dix 2 e: 8
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